Punjab-Haryana High Court
Abhimanu And Another vs Hoshiyar Singh And Others on 4 April, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.34 of 2013 (O&M)
Date of decision: 4th April, 2014
Abhimanu and another
Appellants
Versus
Hoshiyar Singh and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Arun Yadav, Advocate for the appellants.
RAKESH KUMAR GARG, J.
Shish Ram @ Shri Ram son of Ramji Lal, predecessor-in- interest of the appellants and proforma respondents No.6 to 8, suffered a consent decree in favour of the defendants/respondents No.1 to 5. Defendant/respondent No.1 was his real brother, whereas defendants No.2 to 5 were his nephews. The said Shish Ram was unmarried and issueless. According to the appellants, plaintiff Shish Ram was owner in possession of the property, as detailed and described in the plaint, to the extent of 1/5th share i.e. 14 Kanals 0 Marla land falling in Khewat No.127 situated in village Lisan, Tehsil Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.34 of 2013 (O&M) 2 and District Rewari. He filed the instant suit submitting that he had never appeared in the Civil Suit No.331 of 16.07.1990, which was decided on 27.07.1990 by the then Additional Senior Sub Judge, Rewari. It was claimed that the Civil Court decree was passed by fraud and misrepresentation, and therefore, he was not liable for any act committed by the defendants and he had not suffered the decree in question. Further challenge was raised on the ground that the said decree is not registered. Mutation No.1035 dated 21.06.1996 was also challenged, which was sanctioned on the basis of the said Civil Court decree. It was claimed that the plaintiff was still in possession of the land and therefore, the defendants had no right to take possession of the land forcibly. Hence, the suit.
Defendant/respondent No.1 appeared and claimed that the suit was filed beyond limitation and the plaintiff had no right to challenge the decree which was suffered by him voluntarily and as per the family settlement. It was denied that the decree in question was obtained by fraud or misrepresentation. It was further claimed that the plaintiff had appeared before the competent Court and made a statement in the presence of his counsel before the Presiding Officer of the Court and thereafter, judgment and decree in question was passed in favour of the defendants.
Defendant/respondents No.2 to 5 were proceeded against ex-parte.
During the pendency of the suit, the plaintiff expired and on the basis of an un-registered Will alleged to be executed by the Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.34 of 2013 (O&M) 3 plaintiff Shish Ram in favour of his nephews, the appellants as well as proforma respondents No.6 to 8 were impleaded as his Legal Representatives in the suit for contesting the proceedings without giving them any legal right.
On the basis of the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiff is entitled to the declaration as alleged? OPP
2. Whether the plaintiff is entitled for injunction if any?
OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether suit of plaintiff is not maintainable in the present form? OPD
5. Whether plaintiff has got no locus standi and cause of action to file the present suit? OPD
6. Relief.
After hearing learned counsel for the parties, the trial Court decided issues No.1 and 2 against the plaintiff, whereas issues No.3 to 5 were decided in favour of the defendants and resultantly the suit was dismissed with costs vide judgment and decree dated 23.10.2010.
Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the appellants and proforma respondent No.8 filed an appeal, which was also dismissed by the first appellate Court Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.34 of 2013 (O&M) 4 vide its judgment and decree dated 28.09.2012. While dismissing the appeal, the lower appellate Court observed as under:
"While having due regards to the contentions of learned counsel for both the parties, it is observed that admittedly Shish Ram @ Shri Ram was real brother of defendant No.1 Hoshiyar Singh. It is also admitted that he was owner in possession of suit property. Shish Ram has filed suit that he did not suffer any decree in favour of Hoshiyar Singh and the decree was obtained by Hoshiyar Singh by playing fraud upon him. It is settled law that a fraud is to be proved beyond reasonable doubt like a criminal case. It is also well settled law that the person who alleges fraud has to prove the same. In this case, copy of plaint of civil suit titled Hoshiyar Singh Vs. Shish Ram etc. is on file. Written statement in said suit is also filed as Ex.DW4/A. Shish Ram has not denied his thumb impression on the same. He had filed written statement admitting the claim of the plaintiff. Mark D is copy of statement made by Sh.PS Bhatotia, counsel for plaintiff stating that share of defendants No.2 to 5 is also equal to that of plaintiff and that no relief is being claimed by the plaintiff against them. Mark E is certified copy of statement of Shish Ram @ Shri Ram vide which he had admitted the claim of the plaintiff and had made a statement that the suit of the plaintiff be decreed. Mark G is certified copy of judgment dated 27.7.1990 passed in said suit vide which suit field by plaintiff Hoshiyar Singh was decreed as prayed for. On perusal of copy of plaint mark B shows that the suit was filed on the basis of family settlement which had allegedly been arrived between the parties in the month of January, 1990. The suit was filed on 16.7.1990 and was decided on 27.7.1990. The defendant has examined Satbir Singh Advocate (DW4) Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.34 of 2013 (O&M) 5 who was engaged by Shish Ram who had drafted written statement on his behalf. Satbir Singh Advocate (DW4) has identified his signatures on power of attorney and stated that there are thumb impressions of Shish Ram on the same. Thus, Shish Ram DW1, Mange Ram DW2, Jaswant DW3, all have made statement that decree was suffered by Shish Ram in favour of Hoshiyar Singh with his sweet will. The plaintiff has tried to rebut the evidence of defendants. In Chatter Sain alias Chatru v. Manphool 1992 (2) SLJ 1519 (supra), written statement was duly signed and claim was orally admitted to be correct before the Court and the suit was asked to be decreed. The question whether on facts can it be said that any fraud was practiced upon was dealt with by our Hon'ble High Court and answer was given in negative and the consent decree was held to be knowingly and willingly suffered. So far registration of consent decree is concerned, both the parties are brothers and they are co-sharers. In Risala v. Ruldu 2008 (1) CCC 536, it has been held by our Hon'ble High Court that consent decree does not require registration when parties are co-sharers and have common ancestry and settled their share by way of consent decree. In Bachan Singh v. Kartar Singh 2002 (3) RCR (C) 495, it has been held by our Hon'ble Apex Court that consent decree passed by the Court declaring a party owner of land is not required to be registered. Further, it is also pertinent to mention that the impugned decree is dated 27.7.1990 and the suit was filed in the year 2003 i.e. after a period of 13 years. This also shows that the decree was suffered by Shish Ram with his free will."
Still not satisfied, the appellants have filed the instant appeal challenging the judgments and decrees of the Courts below Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.34 of 2013 (O&M) 6 submitting that the following substantial questions of law arise in this appeal:
1. Whether the suit of the plaintiff can be decreed without framing the proper issue regarding the execution of the Will by Shish Ram plaintiff in favour of their nephews?
2. Whether the grave and manifest injustice has been caused to the plaintiff-appellants?
3. Whether the judgments and decrees passed by the learned courts below are outcome of mis-
appreciation and misreading of the evidence available on record?
4. Whether the family settlement can be termed as legal one without associating the other family members?
At this stage, it may be noticed that the appellants have challenged the decree in question on the basis of fraud. It is well settled that fraud is to be pleaded and proved beyond reasonable doubt like a criminal case. The plaintiff-appellants have miserably failed to prove the fraud. In fact, the plaintiff-Shish Ram has not denied his thumb impressions on the written statement Ex.DW-4/A filed in the said suit. Moreover, the counsel, through whom the written statement was drafted, has identified his signatures on Power of Attorney and has stated that the written statement also contains the thumb impressions of Shish Ram. Moreover, Shish Ram appeared and Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.34 of 2013 (O&M) 7 recorded his statement in Court. The impugned decree was passed not only on the basis of admission made in the written statement in the previous suit, but also on the basis of statement recorded in the Court in the previous suit. Statement made in the Court has authenticity and sanctity. There is no evidence to rebut the aforesaid evidence on record. Thus, the findings recorded on the basis of aforesaid facts cannot be set aside only on the averments that fraud has been practiced upon the plaintiff, especially in view of the fact that the averments with regard to fraud have remained unproved.
Not only this, no explanation is forthcoming with regard to delay in filing the instant suit. In fact the decree in question has been challenged after a period of 13 years and no explanation is forthcoming as to why the plaintiff has not challenged the judgment and decree in question earlier.
No other argument has been raised.
Thus, the substantial questions of law, as raised, do not arise at all in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE April 4, 2014 rps Singh Rattan Pal 2014.04.21 12:43 I attest to the accuracy and integrity of this document Punjab & Haryana High Court