Punjab-Haryana High Court
Vipan Kumar And Another vs Jagmal Singh And Others on 2 July, 2014
Author: Arun Palli
Bench: Arun Palli
R. S. A. No. 3476 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No. 101
Case No. : R. S. A. No. 3476 of 2011 (O&M)
Date of Decision : July 02, 2014
Vipan Kumar and another .... Appellants
Vs.
Jagmal Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE ARUN PALLI.
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Present : Mr. Mukesh Mittal, Advocate
for the appellants.
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ARUN PALLI, J. (Oral) :
Suit filed by the plaintiff was dismissed by the learned trial court vide judgment and decree dated 29.07.2009. Appeal preferred against the said decree also failed and was accordingly dismissed by learned first appellate court vide judgment and decree dated 29.04.2011. That is how the plaintiff is before this Court in this Regular Second Appeal. Parties to the lis, hereafter, would be referred to by their original positions in the suit.
In a suit filed by plaintiff (Puran Singh), he claimed a decree for declaration that the judgment and decree dated 27.08.1973 passed by the Monika 2014.07.03 12:43 R. S. A. No. 3476 of 2011 (O&M) 2 Court of Shri K. C. Dang, the then learned Sub Judge IInd Class, Jagadhri in Civil Suit No. 367 of 1973 titled as Jagmal Singh and others vs. Smt. Chowli, regarding the suit land, was wholly illegal, void and result of fraud. Consequently, he prayed for a decree for joint possession of 15/96th share in the suit land. Briefly, the case set out by the plaintiff was that Budh Singh owned 438 kanals 14 marlas of land, and on his death, his estate was succeeded to by his two sons i.e. Munshi and Hamela in equal shares. On the death of Hamela, his share was inherited by his widow Chowli. Parties to the lis are the grandsons of the brother of her husband. Plaintiff also propounded a Will dated 27.08.1973, purportedly executed by Chowli in respect of the suit land, which she inherited from her late husband Hamela. The case set out by the plaintiff was that as per arrangement set out in the alleged Will, she had bequeathed 1/3rd share in equal shares in favour of plaintiff Puran Singh and defendant no. 4 Raj Pal Singh and 1/3rd share in equal shares in favour of Thath Singh and Gian Singh (defendants no. 2 and
3) and 1/3rd share was bequeathed in favour of Jagmal Singh. After the death of Chowli on 20.09.1973, a mutation of her inheritance no. 297 was sanctioned on 31.03.1974 on the basis of the said Will. However, defendant no. 1, 2 and 4 obtained a collusive decree of the land owned by Chowli in their favour on 27.08.1973 by playing fraud upon her. The said decree was being assailed in the present suit being wholly null and void. R. S. A. No. 3476 of 2011 (O&M) 3
Defendants i.e. defendant no.1, 4(ii) and 4(iii) filed written statement and pleaded in their defence that the suit was hopelessly barred by time. Dharam Pal Singh was not authorized and competent to file the present suit on behalf of Puran Singh. The Will being propounded by Puran Singh, purportedly executed by Chowli dated 27.08.1973 was denied as no such Will was executed. It was maintained that the decree dated 27.08.1973 suffered by Chowli was legal and valid. The allegation that the said decree was obtained by fraud were emphatically denied.
Learned trial court, on an analysis of the matter in issue and the evidence on record found that it was not disputed by the plaintiff that Chowli Devi did appear in the proceedings of Civil Suit No. 367 of 1973. In fact, she engaged a counsel, filed the written statement (Ex.P-14) and suffered a statement (Ex.P-15) on the basis whereof the decree in question was passed by the then Sub Judge IInd Class, Jagadhri. Suresh Jaiswal, Advocate (DW-1), who was engaged as counsel for Smt. Chowli Devi in the said suit, deposed that he had appeared in the said suit on instructions from Chowli Devi and she had appeared in person in the Court on 27.08.1973 and of course, she filed the written statement (Ex.P-14) and made a statement (Ex.P-15) before the Court. After the death of Smt. Chowli Devi on 20.09.1973, the suit land was transferred in the name of defendant Jagmal Singh etc. vide mutation bearing no. 298 (Ex.P-17). The said R. S. A. No. 3476 of 2011 (O&M) 4 defendants were found to be in cultivating possession of the land in question on the basis of decree dated 27.08.1973 (Ex.P-12). Thus, it could not be said that the decree dated 27.08.1973 was illegal, void or liable to be set aside. The learned Court was of the view that the settled position of law requires that the plea of fraud and misrepresentation has to be pleaded and proved like any other fact and since there was nothing placed on record, least cogent or convincing, therefore, the decree could not be questioned on any such plea.
Insofar as the Will dated 27.08.1973, being propounded by the plaintiff, the learned Court found that neither the copy of the said Will was placed on record nor any witness, in whose presence the alleged Will was executed by Chowli Devi, was examined by the plaintiff. Concededly, plaintiff Puran Singh never appeared in the witness box nor deposed in his case on oath. Dharam Pal (PW-8) - Attorney of the plaintiff stated in no uncertain terms in his cross-examination that he never saw the original Will of 1973, in fact, it was Puran Singh, who had told him regarding the said Will. Further, he stated that the said Will was unregistered. So much so, the said witness stated in his cross-examination that the purported fraud was also told to him by Puran Singh and he had no personal knowledge thereof.
Additionally, the learned Court also found that the suit was hopelessly barred by time as the decree dated 27.08.2013 (Ex.P-12) was R. S. A. No. 3476 of 2011 (O&M) 5 sought to be assailed by way of present suit filed on 12.08.1999. Resultantly, the learned trial court dismissed the suit.
Plaintiff, being dissatisfied, preferred an appeal. As is discernible from the records, the learned first appellate court reviewed the matter in issue and the evidence on record in its entirety and found itself in concurrence with the view drawn by learned trial court and also the findings recorded in support thereof. The learned first appellate court reiterated that the decree dated 27.08.1973 was indeed suffered by Smt. Chowli Devi and pursuant thereto, mutation no. 298 was sanctioned in favour of defendants i.e. defendant no.1, 4(ii) and 4(iii). Plaintiff failed to prove the Will dated 27.08.1973 purportedly executed by Chowli Devi. The suit being time barred, the appeal was accordingly dismissed vide judgment and decree dated 29.04.2011.
I have heard the learned counsel for the appellant and also examined the judgments rendered by both the courts below.
In the wake of the position set out above and the conclusions concurrently arrived at by both the courts below, the aspect which emerges on record is that Smt. Chowli Devi indeed suffered a decree dated 27.08.1973 in favour of defendants i.e. defendant no.1, 4(ii) and 4(iii). On her death on 20.09.1973, the suit land was mutated in their names vide mutation no. 298 dated 31.03.1974. Not just this, the necessary entries in R. S. A. No. 3476 of 2011 (O&M) 6 the records of rights were accordingly altered in favour of the decree- holders. It has been proved on record that pursuant to the decree dated 27.08.1973, the said defendants continued to be in actual physical and cultivating possession of the suit land. This was not the case set out by plaintiff that Chowli Devi never appeared in the proceedings of Civil Suit No. 367 of 1973 or she was impersonated by anybody. In fact, she not only appeared through a counsel, but also filed the written statement admitting the claim of the plaintiff in the said suit and also made a statement before the Court. I am reminded to point out here that Smt. Chowli Devi never questioned the decree suffered by her during her lifetime. So much so, even the plaintiff, despite mutation no. 298 having been sanctioned in favour of the defendants i.e. defendant no.1, 4(ii) and 4(iii) on the basis of the said decree on 31.03.1974 and the position having been altered in the records of rights in their favour, chose to remain quiet for a period of almost 25 years, to file the present suit. It is noteworthy at this point in time that the decree in question is dated 27.08.1973 and the present suit was filed on 12.08.1999 by plaintiff Puran Singh. The Will being propounded by the plaintiff, purportedly executed by Smt. Chowli Devi, remained unproved on record for the lack of necessary evidence.
That being so, no question of law, much less a substantial question of law, arises for consideration in the present appeal and the same R. S. A. No. 3476 of 2011 (O&M) 7 being devoid of merit is accordingly dismissed.
July 02, 2014 ( ARUN PALLI ) monika JUDGE