Punjab-Haryana High Court
Madan Lal And Anr. vs Rajesh Kumar (Deceased) And Ors. on 11 July, 2005
Equivalent citations: (2005)141PLR466
JUDGMENT M.M. Kumar, J.
1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the judgment and decree dated 21.4.1998 passed in Civil Suit No. 1270 of 1987 was obtained by fraud and impersonation by the defendant-appellants and the same was never suffered by the plaintiff-respondent Chandrawati (now represented by her L.Rs.). It has further been held that the suit of the plaintiff-respondent was within the period of limitation and that the defendant-appellants cannot claim continuation of their tenancy rights in the suit land. In order to maintain clarity, the parties' to litigation are being referred to as per their original nomenclature in the suit by adding suffix of appellants and respondents, although plaintiff Chandrawati is represented by her legal representative.
2. Brief facts of the case are that one Chandrawati used to live with her husband at Village Tosham. She lost her husband Om Parkash at young age. Jagdish Chander defendant-appellant No. 2 is the elder brother of her deceased husband. Defendant-appellant No. 1 Madan Lal is the son of aforementioned Jagdish Chander. Plaintiff-respondent Chandrawati was the owner of the suit land. After the death of her husband Om Parkash, she started living at Village Talwara which was her parents' place and would visit Tosham occasionally to collect the share of her profit from the land (batai). In her absence, defendant-appellant No. 2 alleged to have got himself incorporated as a tenant in the revenue record and he wanted to usurp her land. Defendant-appellant No. 2 used to pay her Rs. 5,000/- in lump sum as part of the profits. Before the filing of suit, he stopped making payment of Batai. In February, 1995 when she sent her brother's son Harish Chander to collect the Batai amount from defendant-appellant No. 2 for the first time, it was disclosed by defendant-appellant No. 2 that the plaintiff-respondent was no more owner. It was later found out that defendant-appellant No. 2 had obtained mutation No. 2662 dated 10.6.1986 sanctioned in favour of his son defendant-appellant No. 1 on the basis of a civil court decree dated 21.4.1988 in Civil Suit No. 1270 of 1987. The case of the plaintiff-respondent is that the aforementioned decree and subsequent mutation have been obtained by practising fraud on the plaintiff-respondent as well as on the Court because she had not filed any written statement in the suit by admitting the claim of defendant-appellant No. 1 nor she has engaged any counsel. The aforementioned judgment and decree and subsequent sanctioning of mutation were challenged on the ground of fraud and impersonation alleging that defendant-appellant No. 1 has illegally occupied the suit land in connivance with his father defendant-appellant No. 2. She claimed restoration of possession and a declaration that defendant-appellant No. 2 Jagdish Chander brother of her deceased husband has even lost the tenancy rights. The mortgage of the suit land by defendant-appellant No. 1 in favour of Oriental Bank of Commerce, Ellenabad to secure a loan of Rs. 99,000/- after the mutation is also alleged to be illegal.
3. The stand of the defendant-appellants in their joint written statement is that no fraud has been played and that plaintiff-respondent Chandrawati has been residing with defendant-appellant No. 2 since 1950 and he used to help her. According to them, a family settlement between the plaintiff-respondent and defendant-appellant No. 2 had taken place and in pursuance to that family settlement, the plaintiff-respondent suffered a judgment and decree dated 21.4.1988 in favour of defendant-appellant No. 1. It is alleged that prior to 1992-93, the plaintiff-respondent used to reside at Village Talwara and that the suit has been filed at the instance of Harish Chander her brother's son. She is alleged to have admitted the claim of defendant-appellant No. 1 in the Court and she herself had engaged a counsel to file written statement on her behalf. It is further claimed that even at the time of mutation proceedings, she had herself appeared by making admission that she had suffered the judgment and decree dated 21.4.1988. It was also claimed that suit was beyond the period of limitation as judgment and decree dated 21.4.1988 has been challenged on 24.3.1995. The Oriental Bank of Commerce has also filed its separate written statement by denying the averments made by the plaintiff-respondent for want of knowledge.
4. Both the Courts below have concurrently found on the basis of detailed analysis of the oral, expert and documentary evidence that the judgment and decree dated 21.4.1988 is the result of fraud and impersonation. Those findings have been upheld by the learned lower Appellate Court. The observations of the lower Appellate Court on the basis of the analysis of the evidence concluding that the judgment and decree dated 21.4.1988 (Ex.P-14) was obtained by fraud and impersonation by defendant-appellant No. 1 read as under:
"Having regard to the rival contentions of learned Counsel for the parties, their respective evidence and after considering the matter deeply, to my mind, the plaintiff has proved on record that the impugned decree Ex.P14 was obtained by fraud by defendant No. 1 with the connivance of his father defendant No. 2 by playing fraud upon her as well as the court by impersonation. On the contrary, the defendants have utterly failed to prove that the impugned collusive decree was legally suffered by the plaintiff. No doubt, the contesting defendants have examined DW3-Brij Mohan Advocate in this respect, but to me, no implicit reliance can be placed on his statement, because the plaintiff was not personally known to him. Further more, he has categorically admitted that he was not acquainted with the plaintiff personally and he cannot say as to whether any other woman, may or may not have appeared on behalf of the plaintiff, in civil suit No. 1270 of 1987. Since the identity of the present plaintiff in the earlier suit was not established on record at all, so the testimony of DW3 is meaningless in this direction and it cannot possibly be said that it was the present plaintiff, who had appeared in the earlier civil suit and had suffered a decree in favour of defendant No. 1."
5. Learned lower Appellate Court has relied upon the evidence of expert witness PW-6 Yashpal Chand Jain who presented his report Ex.PW-6/2 and has discarded the expert evidence of DW-5 Gopal Chand Sharma. The reasoning for discarding the report Ex.DW-5/A submitted by Gopal Chand Sharma DW-5 is that he expressed his opinion by comparing only four ridges of similarity, whereas in his cross-examination he has admitted that according to the science of thumb impressions, comparison of at least eight points of similarity of ridge characteristic are essential to prove the two thumb impressions to be identical and in the present case he had found only four points of similarity as mentioned in his report Ex.DW-5/A'. On the aforementioned basis, the evidence of Gopal Chand Sharma DW-5 was discarded and that of Yashpal Chand Jain PW-6 was preferred who had concluded that the disputed thumb impressions do not tally with the right and left thumb impressions of the plaintiff-respondent and were affixed by some different lady. It has further been found that no notice or intimation was sent to the plaintiff-respondent by the revenue officer nor it is proved that any such notice was actually served on her before sanctioning mutation No. 2662 (Ex.P8) in favour of defendant-appellant No. 1. The defendant-appellants have also to prove that she was present at the time of sanctioning of mutation as they failed to examine the concerned revenue officer nor did they produce the revenue record to prove the presence of the plaintiff-respondent. The best evidence was withheld by the defendant-appellants and adverse inference under Section 114 of the Evidence Act, 1872 (for brevity, 'the Act') has been drawn against them. Therefore, it has been concluded that the plaintiff-respondent never appeared before the revenue officer in the mutation proceedings which has been held to be a secret and sham transaction.
6. It has further been found by the learned Courts below that once he had pleaded alongwith his son defendant appellant No. 1 to be owner in possession, then defendant-appellant No. 2 is estopped from claiming that he was a gair marusi (tenant). The view of the learned lower Appellate Court in this regard is discernible from paragraph 34 of the judgment which reads as under:
"... No doubt, defendant No. 2 has been described to be in possession of the suit land as a gair marusi (tenant), but the same has been stoutly denied by the plaintiff. Be that as it may, but yet, to my mind, he ceased to be a gair marusi and such entry would not come to the help of defendant No. 2 as subsequently, the suit land was mutated in the name of defendant No. 1, in pursuance of null and void decree dated 21.4.1.988 and defendant No. 1 has been shown to be owner in possession of the same. Defendant No. 1 is the son of defendant No. 2. It seems subsequently to the defendants have denied the title of the plaintiff and pleaded that defendant No. 1 is the owner and in possession of the suit land. Under such circumstances defendant No. 2 is estopped from claiming himself as a tenant of the suit land by his act and conduct as it tantamounts to determination of lease because it is now well settled proposition of law that the moment defendant No. 2 denied title of the landlady and set up a different plea with regard to the ownership of the land, then he ceased to be tenant of the same.
7. Both the courts below also found that suit of the plaintiff-respondent was within limitation. The view of the learned lower Appellate Court in this regard reads as under:
"... At the first place as indicated herein above, PW5 Harish Chander has explained that he had visited village Talwara Khurd and met defendant No. 2 in the year 1995 and at that time he came to know that defendant No. 1 had procured a decree against the plaintiff. The statement of Harish Chander finds further corroboration from the statement of PW4 in this respect. Thus, it stands proved on the record that till February 1995, it was not in the knowledge of the plaintiff who was residing in a different District that defendant No. 1 had procured a collusive decree against her. Secondly once it is held that the impugned collusive decree on the basis of which mutation was sanctioned and entries in revenue record were changed in the name of defendant No. 1 is null and void and is the result of impersonation and fraud to which the plaintiff was not a party, then the terminus quo/limitation would start from the date of the knowledge of the decree notwithstanding, the fact mutation had been sanctioned in pursuance of the such illegal decree...."
8. Mr. Ashok Aggarwal, learned Counsel for the defendant-appellants has challenged the concurrent findings of fact and has raised the following submissions before me.:
a) Despite annulment of judgment and decree dated 21.4.1988 and mutation No. 2662 dated 10.6.1988 (Ex.P8), the status of defendant-appellant No. 2 Jagdish Chander would continue to be that of a gair marusi tenant and the same would not vanish after declaring the judgment and decree alongwith mutation as null and void. In support of his submission, learned Counsel has placed reliance on a judgment of this Court in the case of Devinder Kaur v. Manmohan Singh and Ors., 1991 P.L.J. 539.
b) The onus to prove the fraud and impersonation in obtaining judgment and decree dated 21.4.1988 and mutation No. 2662 dated 10.6.1988 was on the plaintiff-respondent and both the Courts below have proceeded as if the onus was required to be discharged by the defendant-appellants.
c) The suit of the plaintiff-respondent is absolutely beyond the period of limitation of three years as envisaged by Article 58 of the Schedule appended to the Limitation Act, 1963.
9. Mr. B.L. Gulati, learned Counsel for plaintiff-respondent No. 1 has argued that once it has been proved that the judgment and decree dated 21.4.1988 has been obtained by practising fraud on the plaintiff-respondent as well as the Court and the mutations has been entered on the aforementioned basis on 10.6.1988 (Ex.P8), then it would vitiate everything. According to the learned Counsel, no period of limitation would come in the way of plaintiff-respondent. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of S.P. Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (Dead) by L.Rs and Ors., (1995-1) 109 P.L.R. 293 (S.C.). He has also relied upon a judgment of this Court in the case of Chandigarh Primary Co-operative Agricultural Development Bank v. State of Punjab, (2005-2) 140 P.L.R. 371 for the same proposition. Learned counsel has then argued that Article 58 of the Schedule appended to the Act would not be attracted to the facts of the present case because the subject matter of the suit filed in the instance case would be covered by Article 59 of the Schedule appended to the Act which provides a period of three years from the date of knowledge to the plaintiff. Learned counsel has maintained that Harish Chander, nephew of the plaintiff-respondent was the first person who was told by defendant-appellant No. 2 in February, 1995 that she was no longer owner of the suit land. According to the learned Counsel, a period of three years has to be reckoned from February, 1995 and if so calculated, the suit has to be considered within the period of limitation because it was instituted on 25.3.1995. It has further been argued by the learned Counsel that tenancy rights of defendant-appellant No. 2 would not survive after a categorical stand has been taken alongwith his son defendant-appellant No. 1 that they are owners in possession of the suit land. In support of his submission, learned Counsel has placed reliance on a Division Bench judgment of this Court in the case of Charan Singh v. Municipal Committee, Rania and Ors., 1996 P.L.J. 254. It has further been submitted by the learned Counsel that the plaintiff-respondent has duly discharged the burden of proof by producing expert evidence PW-6 and the burden of proof shifted to the other side. He has maintained that once the plaintiff-respondent was in a position of being dominated by the defendant-appellant being her Jeth, then the burden of proof in any case would shift to the other side. In support of his submission, learned Counsel has placed reliance a judgment of the Supreme Court of India in the case of Krishna Mohan Kul @ Nani Charan Kul and Anr. v. Pratima Maity and Ors., (2003-3)135 P.L.R. 757. The last submission of the learned Counsel is that this Court should not interfere in the concurrent findings of facts merely because the onus was placed on wrong party or that one party or the other has failed to discharge the onus. Relying on the judgment of the Supreme Court in Krishna Mohan Kul's case (supra), learned Counsel has argued that whole evidence is required to be considered by the trial Court and first Appellate Court.
10. Having pondered over the respective submissions made by learned Counsel for the parties and going through the judgments and decrees passed by both the Courts below, I am of the view that no interference of this Court in exercise of jurisdiction under Section 100 of the Code would be warranted. It has been concurrently found by both the courts below on the basis of cogent evidence that decree dated 21.4.1988 has been obtained by the defendant-appellants by practising fraud. A perusal of the observations made by the learned lower appellate Court in paras 29 and 30 to which reference has already been made in the preceding paras would show that in the proceedings which culminated in the passing of judgment and decree dated 21.4.1988, the plaintiff-respondent did not participate nor she had thumb marked either the written statement or the vakalatnama. The statements made by the expert witnesses PW-6 Yashpal Chand Jain proving his report Ex.PW-6/2 and Gopal Chand Sharma DW-5 who proved his report Ex.DW-5/A have been duly considered. It has been found that the disputed thumb impressions were not identical to that of admitted thumb impressions. The report of the expert produced by the defendant-appellants has been discarded by disclosing cogent reasons because it was admitted by Gopal Chand Sharma DW-5 that he had expressed the opinion by comparing four points of similarity in the ridges, whereas in accordance with the science of thumb impressions, similarity of ridge characteristics of at least eight points is essential. The other report Ex.PW-6/2 submitted by Yashpal Chand Jain PW-6 has been found to be authentic which also answer the requirement of the science of the thumb impressions which requires at least eight points of similarity of ridge characteristics. Apart from the fabricated thumb impressions of the documents, it has further been found that no notice or intimation was sent to the plaintiff-respondent by the revenue officer before sanctioning of mutation. It has also come in evidence that criminal case has been registered against the defendant-appellants and Om Parkash Numberdar who have appeared before the revenue officer on 10.6.1988. His statement has not been believed because he had to depose differently in order to avoid any criminal liability. The defendant-appellants have failed to place on record any evidence showing that the plaintiff-respondent suffered the impugned judgment and decree dated 21.4.1988 and was present before the revenue officer on 10.6.1988 when the impugned mutation was entered. They even failed to produce the revenue officer who was the best witness.
11. The first submission made before me at (a) above is that the rights of defendant-appellant No. 2 as a tenant would continue to exist and the same would not be wiped out even if the judgment and decree dated 21.4.1988 and consequential mutations dated 10.6.1988 are declared to be null and void or are found to be result of fraud and impersonation. It is well settled that estoppel of a tenant under Section 116 of the Evidence Act, 1872 would operate and a tenant is not permitted to deny that the landlord of such tenant had not title to such property during the subsistency of tenancy. In this regard reference may be made to the judgments of the Supreme Court in the case of Tej Bhan Madan v. IInd ADJ, and Vashu Deo v. Balkishan, . Accordingly it must be held that once defendant-appellant No. 2 has denied the title of the plaintiff-respondent landlady and set up his own title or the title of his son defendant-appellant No. 1, then he ceased to be a tenant. Moreover, the entries in the revenue record in that regard have been made on 10.6.1988 which have been found to be fraudulent as the decree itself is the result of fraud and impersonation. Therefore, there is no reason to permit defendant-appellant No. 2 to reclaim his status as a tenant. Hence, there is substance in the argument raised by the learned Counsel.
12. 1 am further of the view that once it has been found that the judgment and decree dated 21.4.1988 has been obtained by fraud and impersonation, then it would vitiate all judicial acts. Referring to the observations made by Chief Justice Edward Coke of England, the Supreme Court in the case of S.P. Chengalvaraya Naidu's case (supra) has held as under:
"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree-by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
13. The argument of the learned Counsel at (b) has to be rejected because it is well settled that once both the parties have adduced evidence, the question of onus loses its significance and it becomes an academic issue. In this regard reliance may be placed on the view taken by the Supreme Court in the case of Union of India and Ors. v. Sugauli Sugar Works (P) Ltd., . The relevant observations have been made in paragraph 14 at page 1416. Similar view has been taken in paragraph 36 of the judgment in the case of Cox and Kings (Agents) Ltd. v. Their Workmen and Ors., . The aforementioned observations read as under:
"36. The question of onus oft loses its importance when both the pyrites adduce whatever evidence they had to produce. In the instant case, both the parties led their evidence and closed their respective cases. Subsequently, at a late stage, the Management made an application for adducing additional evidence. The Labour Court declined that application. The High Court found and we think rightly, no good reason to interfere with the discretion of the Labour Court. It may be remembered further, that this appeal arises out of a petition under Article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal advice. The finding of the Labour Court to the effect that after their dismissal Ram Swamp Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find only intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those findings of fact."
14. The view taken by the Supreme Court in the aforementioned judgments has been relied upon in the case of Sushil Kumar v. Rakesh Kumar, . Therefore, there is no substance in submission (b) made by learned Counsel for the defendant-appellants.
15. The next argument at (c) which requires to be considered is whether the suit filed by the plaintiff-respondent was within limitation or it was barred. It is well settled that the suit involving prayer for setting aside a judgment and decree on the ground of fraud, impersonation and coercion etc. would attract the application of Article 59 and not that of Article 58 of the Schedule appended to the Act. The starting point of limitation under Article 59 of the Schedule appended to the Act is the date of knowledge of the alleged fraud. The aforementioned view has been expressed by the Supreme Court in the case of Md. Noorul Hoda v. Bibi Raifunnisa and Ors., . In this regard the observations made by their Lordships in paragraph 6 read as under:
"6. The question, therefore, is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 9 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded...."
(emphasis added)
16. It is also pertinent to mention that Section 17 of the Act specifically provides that the period of limitation would not begin to run until the plaintiff had discovered the fraud which he could not have discovered with reasonable diligence. Section 17 of the Act in so far as it is relevant to the present case is reproduced hereunder for a ready reference:
"17. Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-
(a) the suit or application is based upon the fraud of the defendant or respondent or his agents; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-
(i) In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."
17. When the principles laid down in Article 59 of the Schedule as interpreted by the Supreme Court and Section 17 of the Act are applied to the facts of the present case, then no doubt is left that the plaintiff-respondent acquired knowledge of the passing of decree some where in February, 1995 when his nephew Harish Chander was apprised by defendant-appellant No. 2 that she was no longer owner of the suit property and no Batai which used to be paid to her earlier was payable. It is further appropriate to mention that after the so called decree, in 1998 defendant-appellant No. 2 continued paying Batai to the plaintiff-respondent in order to keep her in complete dark with regard to existence of decree. Therefore, the period of limitation would not begin to run till the plaintiff-respondent acquired knowledge through her nephew in February, 1995 and if that be so, then the suit filed by her is within limitation as it was instituted on 25.3.1995. Therefore, there is no substance in argument (c) raised by learned Counsel for the defendant-appellants that the suit was barred. His reliance on Article 59 of the Schedule appended to the Act is absolutely misconceived.
18. Even otherwise, I am of the view that these are concurrent findings of facts which would not warrant any interference of this Court in exercise of jurisdiction under Section 100 of the Code. No question of law for determination which has not already been decided either by this Court or by the Supreme Court has been raised. In the absence of such a question of law, the appeal is liable to be dismissed as has been held in Krishna Mohan Kul's case (supra).
19. For the reasons stated above, this appeal fails and the same is dismissed with costs which is assessed at Rs. 10,000/-.