Punjab-Haryana High Court
Krishani Devi And Ors. vs Shamsher Singh And Ors. on 18 December, 2003
Equivalent citations: (2004)137PLR442
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The defendants have filed this Regular Second Appeal against the judgment and decree passed by both the Courts below, vide which a decree for joint possession of the suit land with respect to 5/21st share has been granted in favour of the plaintiffs-respondents while holding that the consent decree dated 1.8.1960 suffered by Sadhu Ram in favour of the defendants was not binding on the rights of the plaintiffs.
2. The brief facts of the case are that one Sadhu Ram was owner of certain land and property including the land in question. He was having three wives, namely Gulab Kaur, Punjab Kaur and Kishan Devi. Gulab Kaur was issueless; Punjab Kaur was having one daughter Gurdev Kaur and Kishan Devi was having three sons and two daughters. During his life time, the said Sadhu Ram suffered a consent decree regarding some of the , land in favour of Smt. Kishan Devi, her sons and daughters, who are appellants/defendants in the instant appeal/suit The said consent decree was challenged by Gulab Kaur, Punjab Kaur and her daughter, who are respondents/plaintiffs in the instant appeal/suit. In the year 1963, Sadhu Ram expired and after his death, all the properties except the land which was subject matter of the aforesaid decree was inherited by all his legal heirs, including the parties to the instant litigation, as per their share according to the Hindu Succession Act. The only dispute was regarding the land which was the subject matter of the aforesaid consent decree. The plaintiffs filed the instant suit in the year 1964, challenging the said decree on the ground that the same was obtained by the defendants by fraud, under influence and collusive and was not binding on their rights. The defendants contested the suit on various grounds.
3. On the pleadings of the parties, the following issues were framed by the learned trial Court;-
1. Whether the suit is properly valued for purposes of court fee and jurisdiction?
2. Whether the plaintiffs have a locus standi to file the suit?
3. Whether the decree passed in suit No. 259 of 1960 is not binding on the plaintiffs for any of the reasons stated in para 3 of the plaint? OPP
4. Whether the suit is within limitation? OPP
5. Relief.
4. Issues No. 1 and 2 were treated as preliminary issues and were decided in favour of the plaintiffs. Thereafter, the other issues were also decided in favour of the plaintiffs and their suit was decreed. On appeal filed by the defendants, the learned first appellate Court reversed the finding of the learned trial Court on issue No. 2 and held that the plaintiffs were having no locus standi to file the suit and dismissed the suit of the plaintiffs. Against that judgment and decree, the plaintiffs filed RSA No. 1182 of 1965 in this Court, which was allowed vide judgment dated January 22, 1976 by holding that since Sadhu Ram died after coming into force of the Hindu Succession Act, therefore, the plaintiffs being widows and daughters of Sadhu Ram have locus standi to file the instant suit challenging the aforesaid consent decree. The case was accordingly remanded to the learned first appellate court for re-deciding issue No. 3 after hearing the parties.
5. By the impugned judgment and decree dated 29.2.1980, the learned first appellate court decided issue No. 3 in favour of the plaintiffs and held that the consent decree suffered by Sadhu Ram was a collusive one and was not binding on the rights of the plaintiffs. Therefore, the finding recorded by the learned trial court on this issue was affirmed. Against the said judgment and decree, the instant appeal has been filed.
6. When the appeal was listed for regular hearing, the actual date notice was issued to the respondents as the counsel engaged by them had since expired. Since in response to the actual date notice, no one appeared on behalf of the respondents, therefore, I have heard the arguments addressed by learned counsel for the appellants and have perused the records.
7. Learned counsel for the appellant raised the following question of law;-
"Whether the consent decree dated 1.8.1960 passed in favour of the defendants vide which they became owners of the suit property is binding upon the rights of the plaintiffs?"
8. Learned counsel submitted that a decree passed by the Court of competent jurisdiction can be set aside or avoided only on the ground that the same was not delivered by a court of competent jurisdiction or was obtained by fraud or collusion. It is for the party, who wants to avoid the decree, to prove that the decree was obtained by fraud or collusion. He further submitted that there is no material on the record on the basis of which it can be said that the impugned consent decree was a result of fraud, collusion or undue influence. The plaintiffs did not lead any evidence in this regard. The Courts below have drawn inference that the decree was collusive only on the basis of the fact that the deceased Sadhu Ram used to live with his wife Kishan Devi and was under her influence being his youngest wife. It was further held by the learned trial court that since defendant Kishan Devi herself admitted that plaintiffs No. 1 and 2 used to quarrel with her and as such, on the asking of the Panchayat, Sadhu Ram deceased transferred this property in favour of the defendants, therefore, the said statement clearly indicates that the said decree was suffered by Sadhu Ram in collusion. Learned counsel for the appellants submitted that on such conjectures, it was held that the decree was collusive. However, neither there is any evidence on the record nor any such finding has been recorded by the Courts below that the impugned consent decree was suffered by fraud or undue influence.
9. After hearing the arguments of learned counsel for the appellants and going through the record of the case, I am of the opinion that the finding recorded by the Courts below on issue No. 3 is totally perverse and based on conjectures and only on the basis of the said finding, it cannot be held that the impugned consent decree was not binding on the rights of the plaintiffs. Undisputedty, neither there is any plea nor any issue or evidence to the effect that the impugned consent decree was obtained by fraud and undue influence. The only finding is that it was collusive. The said findings has been recorded by the learned trial Court only on the basis of three factors; firstly that Sadhu Ram used to live with Kishar, Devi and was under her influence being his youngest wife; secondly that Kishan Devi herself admitted in her statement that plaintiffs No. 1 and 2 used to quarrel with her and as such on the asking of the Panchayat, Sadhu Ram deceased transferred the property in question in the name of the defendants; and thirdly that Sadhu Ram did not engage any lawyer nor he defended the suit and filed the admitted written statement. Merely on these factor, in my opinion, it cannot be said that the decree was collusive, in the sense the same was not binding on the rights of the plaintiffs, particularly when the property in question in the hands of Sadhu Ram was his self acquired property. It is not the case of the plaintiffs that the said property was ancestral property of Sadhu Ram. The learned first appellate court affirmed the finding of the learned trial court on issue No. 3, while observing that the defendants did not bring and prove on record the family settlement on the basis of which the aforesaid consent decree was passed; the said decree was passed merely on the basis of admitted written statement filed by Sadhu Ram, therefore, the same cannot be said to be binding on the rights of the plaintiffs. However, in my opinion, merely because the consent decree was passed on the basis of admitted written statement, it cannot be said that such kind of decree is not binding. The consent decree is as valid as the contested decree. The same can be avoided only on the ground that it was result of fraud and undue influence or otherwise on the ground of non-registration. In the instance case, the said consent decree has been challenged only on the ground of fraud and collusion. To my mind, there is no evidence available on the record, on the basis of which the aforesaid consent decree can be said to have been the result of fraud or collusion. Thus, in my opinion, the finding recorded by both the Courts below on issue No. 3, is totally perverse and liable to be said aside.
10. In view of the aforesaid discussion, the appeal is allowed. The impugned judgment and decree passed by both the Courts below are set aside and suit of the plaintiffs is dismissed.
11. No order as to costs.