Punjab-Haryana High Court
Smt. Chameli vs Prem Kumar And Another --Respondents on 18 April, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No. 367 of 2011(O&M)
Date of Decision: 18.4.2012.
Smt. Chameli --Appellant
Versus
Prem Kumar and another --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. Sanjiv Gupta, Advocate for the appellant.
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TEJINDER SINGH DHINDSA.J Plaintiff-appellant is in second appeal before this Court. Plaintiff Smt. Chameli instituted a suit for declaration in terms of pleading that her father Ram Kala was owner of ¼ share out of total land measuring 251 kanals 15 marlas situated in village Anjanthali, Tehsil Nilokheri, District Karnal. Ram Kala had three sons namely Surta, Ratna and Dharam Singh and one daughter i.e the plaintiff herself. Upon Ram Kala's death his share devolved upon his three sons and daughter as his wife had already predeceased him. Plaintiff asserted that a family arrangement had taken place between herself and her three brothers in terms of which her share in the suit land would go to her three brothers namely Surta, Ratna and Dharam Singh in equal shares. Plaintiff pleaded that her brother Ratna had obtained her thumb impressions on certain documents and had taken her to court premises, whereupon her thumb impressions were again obtained on the plea that her share was being transferred in favour of the three brothers. As such, plaintiff had affixed her thumb impressions in good faith. However, about a few days prior to filing of the suit when the plaintiff visited the house of her brother Surta's son, she became aware that RSA No. 367 of 2011(O&M) -2- her share had been fraudulently transferred in the names of the defendants Prem Kumar and Puran Singh i.e sons of Ratna by way of a civil court decree dated 11.12.1991 in civil suit no.543 of 1991. Against such factual backdrop the suit had been filed seeking a decree for declaration to the effect that the judgement and decree dated 11.12.1991 in civil suit no.543 of 1991 was null and void and was not binding on her rights. The suit was contested by the defendants in terms of stating that the plaintiff had suffered the decree in their favour willingly and with her free consent as she was being looked after by the defendants as also their father namely Ratna. The defendants stated that they were cultivating the land to the extent of her share exclusively and that the impugned decree was valid and binding between the parties. The Trial Court vide judgement dated 15.3.2008 dismissed the suit and even a civil appeal preferred by the plaintiff-appellant has been dismissed by the Additional District Judge, Karnal vide judgement dated 7.9.2010. Resultantly, plaintiff-appellant is in second appeal before this Court.
I have heard Mr. Sanjiv Gupta, learned counsel appearing for the appellant at length.
Having perused the impugned judgements and decrees passed by the courts below, I find that the present second appeal is totally devoid of merit for the reasons recorded hereinafter.
The entire plea set up by the plaintiff while impugning the judgement and decree dated 11.12.1991 adduced on record as Ex.P-7 and P- 8 respectively is that the same were obtained fraudulently by Ratna i.e the father of the present defendants. The assertion of the plaintiff was to the effect that she had been taken to the court premises and her thumb RSA No. 367 of 2011(O&M) -3- impressions had been obtained by misrepresenting to her that the land in question was being transferred in favour of all the three brothers namely Surta, Ratna and Dharam Singh. However, such plea of the plaintiff was demolished herself in her testimony while appearing as PW-1, wherein during cross-examination plaintiff Smt. Chameli admitted the fact that she had herself appeared in the court when the decree was suffered. Plaintiff also admitted that she had made a statement on her own accord in the court and that the decree had been passed on the basis of her statement. Plaintiff also admitted that the defendants were in cultivating possession of the suit land and that she had herself never cultivated the same. There would be no dispute with the proposition as canvassed by the learned counsel for the appellant that a consent decree can be got set aside, if, the same is obtained by fraud or misrepresentation. However, the plea of fraud has to be substantiated and corroborated in terms of specific averments as also the evidence to be adduced in support thereof. Both the courts below have held that no such evidence had been adduced on record to establish the ground of fraud as regards passing of judgement and decree dated 11.12.1991 is concerned. On the contrary the plaintiff herself testified in her cross- examination as regards the consent decree having been passing willingly and on account of her free consent.
The present suit was instituted in the year 2005 i.e. almost 14 years after the judgement and decree dated 11.12.1991 to which a challenge had been laid. Under Section 59 of the Limitation Act the period of three years prescribed for cancellation or for getting the decree set aside would necessarily commence from the date the plaintiff acquired knowledge in regard to the passing of the impugned judgement and decree. As per her RSA No. 367 of 2011(O&M) -4- own statement in cross-examination, as the plaintiff had admitted to having visited the court premises and having made a statement before the court in civil suit no.543 of 1991 in pursuance to which the impugned judgement and decree was passed. It would be fair to presume that the plaintiff Smt. Chameli was in the knowledge of the impugned judgement and decree on the date it was passed. As such the period of limitation was to commence w.e.f. 11.12.1991 and the present suit filed on 28.7.2005 was clearly barred by limitation.
Learned counsel for the appellant has also raised a submission in regard to challenge of the judgement and decree dated 11.12.1991 on the ground of non-registration. Even such argument is without merit in as much as it is well settled that a party to a consent decree cannot challenge the same on the ground of non-registration.
For the reasons recorded above, the present second appeal must fail as it does not raise any question of law much less a substantial question of law. The appeal, accordingly, is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE 18.4.2012.
lucky Whether to be reported? Yes/No.