Punjab-Haryana High Court
Bal Kishan vs Maya Devi And Others on 27 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No.4887 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 4887 of 2012
Date of Decision: January 27, 2014
Bal Kishan
... Appellant
Versus
Maya Devi and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Mani Ram Verma, Advocate,
for the appellant.
Paramjeet Singh, J.
This second appeal is directed against the judgment and decree dated 22.10.2009 passed by the learned Additional Civil Judge (Senior Division), Bhiwani whereby suit for declaration filed by the appellant-plaintiff has been dismissed, as well as, against the judgment and decree dated 31.07.2012 passed by the learned Additional District Judge (I), Bhiwani whereby appeal preferred by the appellant-plaintiff has also been dismissed.
Kumar Virender 2014.03.11 12:12 I attest to the accuracy and integrity of this document RSA No.4887 of 2012 2
For convenience sake, hereinafter parties will be referred to as they were arrayed in the Court of first instance.
The detailed facts are already recapitulated in the judgments of both the Courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are that plaintiff filed a suit against his sons for declaration alleging that he has become owner in possession of the land measuring 93 kanals 18 marlas, fully detailed in the headnote of the plaint, situated in the revenue estate of Village Bajina, Tehsil Tosham, District Bhiwani. It is alleged in the plaint that decree dated 20.05.1993, passed in Civil Suit No. 248 titled "Bal Kishan vs. Raj Kumar and others" and mutation No. 2572 entered on the basis of the same were illegal, null and void. The plaintiff also sought injunction for restraining the defendants from alienating the suit land and from interfering in his possession over the same. It is further alleged that the defendants were trying to dispossess the plaintiff and were also threatening to alienate the suit land.
Upon notice, defendant nos.1 and 2 appeared and filed written statement taking preliminary objections with regard to maintainability of the suit. On merit, they denied that plaintiff is owner in possession of the suit land. It is alleged that the defendants have become owners in possession of the suit land on the basis of judgment and decree dated 20.05.1993 and they are in possession at the spot. Vijay Kumar-defendant no.2 had also installed a tubewell. It is also alleged that the plaintiff was present when the mutation was sanctioned. It is further alleged that in fact Kumar Virender 2014.03.11 12:12 I attest to the accuracy and integrity of this document RSA No.4887 of 2012 3 plaintiff had borrowed some money from the grand-father of the defendants and when the money was demanded, he had suffered the decree.
On the pleadings of the parties, the following issues were framed by the Court of first instance:-
"1) Whether the plaintiff is entitled to declaration as prayed for?
OPP
2) Whether the present suit is not maintainable in the present form? OPD
3) Whether the plaintiff has no locus-standi to file the present suit? OPD
4) Whether the plaintiff is stopped by his own act and conduct from filing the present suit? OPD
5) Whether the plaintiff has not come in the Court with clean hands? OPD
6) Relief."
The Court of first instance after perusal of the evidence recorded issue-wise findings and dismissed the suit vide judgment and decree dated 22.10.2009. Against that, the plaintiff preferred an appeal, which has also been dismissed by the learned lower appellate Court vide judgment and decree dated 31.07.2012. Hence, this second appeal.
I have heard learned counsel for the appellant and perused the record.
Learned counsel for the appellant referred to the substantial questions of law involved in this appeal formulated in the grounds of appeal which read as under:-
Kumar Virender 2014.03.11 12:12 I attest to the accuracy and integrity of this document RSA No.4887 of 2012 4
"a) Whether the Additional District Judge had failed to exercise jurisdiction while not accepting the application of (plaintiff) appellant for leading additional evidence?
b) Whether plaintiff was competent to suffer a decree?
c) Whether the decree require registration?
d) Whether the finding of the appellate Court regarding suit
being time barred is beyond pleading & evidence of the parties?
The only issue in the present case is "whether the judgment and decree dated 20.05.1993 passed in Civil Suit No. 248 titled "Bal Kishan vs. Raj Kumar etc." whereby the property was transferred by the plaintiff in favour of the defendant is null and void and the finding recorded by both the Courts below are perverse?"
Both the Courts below have recorded a finding that no evidence has been brought on record by the plaintiff to prove that judgment and decree dated 20.05.1993 was obtained by fraud. The plea of the plaintiff that he was not present before the Court on 20.05.1993 for making the statement stands refuted from documentary evidence led by the defendants in the shape of written statements, Vakalatnama filed by the plaintiff in previous suit. The statement made on 20.05.1993 also bears the signatures of the plaintiff which stood proved by expert evidence. Learned lower appellate Court has also recorded a finding that since judgment and decree dated 20.05.1993 was based on family settlement, it was not required to be registered. Otherwise also since the plaintiff is pleading that the decree was obtained by fraud, no separate suit lies for setting aside Kumar Virender 2014.03.11 12:12 I attest to the accuracy and integrity of this document RSA No.4887 of 2012 5 such decree when both plaintiff and defendants were party in the civil suit in which the alleged collusive decree was passed. Reference may be made to the judgment of Hon'ble Supreme Court in Pushpa Devi Bhagat (deceased) through LRs vs. Rajinder Singh, 2006(3) RCR (Civil) 479.
Concurrent findings of fact have been recorded by both the Courts below. Learned counsel for the appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. Consequently, the said findings of fact do not warrant interference in second appeal. No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal.
No other point has been argued.
Dismissed.
No order as to costs.
January 27, 2014 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2014.03.11 12:12
I attest to the accuracy and
integrity of this document