Punjab-Haryana High Court
Darshan Singh vs Kulwant Kaur & Others on 19 January, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.4105 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.4105 of 2011(O & M)
Date of decision: 19.01.2012
Darshan Singh ...Appellant
Versus
Kulwant Kaur & others ...Respondents
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA Present: Mr.Ashish Aggarwal, Advocate for the appellants. G.S.SANDHAWALIA J.
The present appeal has been filed by the defendant- appellant who is aggrieved against the declaration given by the Courts below wherein the award dated 13.09.2003(Exhibit P1) passed in Civil Suit No.67 of 2002 by the Permanent Lok Adalat, Karnal was rendered as illegal, null and void in the eyes of law and not binding upon the rights of the plaintiff-respondents along with consequent mutation No.1766 (Exhibit P2). The decree of possession of the land was also passed in favour of the plaintiff- respondents and against the defendant-appellant who were directed to deliver the possession within two months from the date of passing of judgment and decree and they were further restrained from transferring/alienating the land in favour of anyone else vide judgment and decree dated 26.02.2010.
The facts of the case are that the plaintiff-respondent Nos.1 & 2 are daughters of Baja Singh who was the brother of defendants and owner in possession of 8 kanals of land situated in the revenue estate of Bilona, Tehsil Assandh, District Karnal. RSA No.4105 of 2011 2 Baja Singh had no son and his two daughters, i.e., plaintiff- respondent Nos.1 & 2 were married in the year 1968 and 1976 respectively and Baja Singh was living in the village and dependent upon the defendant-appellant. The allegations of the plaintiff-respondents is that taking benefit of the old age of their father, Baja Singh who was approximately 80 years old and totally blind, defendant-appellant filed Civil Suit No.67 of 2002 and got the same transferred to the permanent and continuous Lok Adalat, Karnal and by way of compromise, agricultural land measuring 8 kanals was got transferred in the name of the defendant-appellant on the ground of exchange in lieu of the property taken by the defendant-appellant from Baja Singh. In the exchange, it was alleged that some bara/house situated in Village Rattak was shown to have been given to Baja Singh, but in fact, no such plot or house was ever given to Baja Singh in favour of that exchange of the said agricultural land and neither such plot/house ever existed in the name of the defendant- appellant at Village Rattak. Accordingly, it was pleaded that the defendant-appellant had defrauded Baja Singh and on the basis of the said award, mutation No.1766 dated 08.12.2004 had also been entered in their favour. After the death of Baja Singh on 09.11.2004, when the plaintiff-respondents came to the village to collect the batai of their agricultural land of their father, they were denied the same by the defendant-appellant and they found that the land had been got transferred by the defendant- appellant by the said fraud.
RSA No.4105 of 2011 3
The defendant-appellant took various pleas in his separate written statement including the maintainability of the suit and it being time barred and that the plaintiffs were restrained by their act in filing the suit as they had not come to the Court with clean hands etc. and on merits alleged that the allegations regarding blindness of Baja Singh was false and frivolous and Baja Singh was acquainted with the language of Punjabi and English and he had signed in English on the said compromise and was also aware of the said compromise and exchange which was orally effected in the year 2000 and Baja Singh was given possession of the property which he got in lieu of the suit property. It was also alleged in the written statement that the plaintiffs were present and their father-Baja Singh had consulted the plaintiffs and there was nothing to be kept secret about the exchange. Accordingly, it was pleaded that the exchange was effected in the Lok Adalat which could not be challenged in any Court of law under the Legal Services Authority Act, 1987. Separate written statement was filed by defendant No.2, Kulwant Singh, who, though contesting the plaint, also admitted that Baja Singh was aware that there was no house or plot/bara situated at Village Rattak and whatever was tutored by the counsel, the same was said by Baja Singh before the Permanent Lok Adalat without any type of pressure, coersion and on his free will due to the close relation between each other and thus submitted that the award was rightly passed. Replication was also filed denying the said allegations alleging RSA No.4105 of 2011 4 that the suit was maintainable. On the basis of the said pleadings, the trial Court framed the following issues:
1. Whether the decree/award dated 13.9.03 passed in civil suit No.67/02 from Permanent and Continuous Lok Adalat, Karnal being illegal, null and void, inoperative, ineffective and is a result of fraud and forgery and not binding on the rights of the plaintiffs? OPP
2. If issue No.1 is proved, whether the plaintiffs are entitled for decree for permanent injunction restraining the defendants permanently from alienating/transferring/mortgaging the suit land in any manner? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the suit is hopelessly time barred? OPD
5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
6. Whether the plaintiffs have not come to the court with clean hands? OPD
7. Whether the plaint is neither signed nor verified in accordance with law? OPD
8. Whether the suit has been filed on false and frivolous grounds? OPD
9. Whether the suit is vague and does not disclose any cause of action against the defendants? OPD
10.Whether the suit is misuse of the process of court? OPD
11.Whether the suit is barred by the provisions of Legal Service Authority Act, 1987? OPD
12.Relief.
The trial Court, after taking into consideration the evidence on record and the pleadings took upon it to examine the aspect whether any house/plot/bara ever existed in the name of the defendant-appellant in Village Rattak and that any such plot had ever been owned or possessed by the defendants, keeping in RSA No.4105 of 2011 5 mind that in the absence of such ownership, the question of fraud would be proved. Accordingly, the trial Court examined the plaint in the civil suit No.67 of 2002 (Exhibit PW4/A) and noticed that the boundaries of the house had been mentioned in the plaint which were vague and showed vacant land in north side and street on the south side while on the east and west, there were properties of others. The fact that the names of the adjacent plot holders or constructed houses were not mentioned and in the written statement filed by the defendants also do not give the description of the house as to whether the house was self- acquired or ancestral property or whether it existed in lal dora of the Village Rattak or it was outside the limits had not been mentioned. The admission of defendant No.2, one of the beneficiary of the award that the defendants had never been in possession of the house in Village Rattak was taken into note and it was noticed that defendant No.2 further stated that Baja Singh knew that he was receiving nothing in lieu of his land measuring 8 kanals. Accordingly, it was held that there was no house in existence which is the subject matter of dispute. Accordingly, putting Section 119 of the Transfer of Property Act into play, the trial Court observed that once there was a defect in the title of the parties in the exchange deed, the defendants were liable to return the land measuring 8 kanals to the legal representatives of the deceased-Baja Singh. The contention of the counsel for the defendant-appellant that the permission to challenge the award by way of filing writ petition was rejected on the ground that RSA No.4105 of 2011 6 there was a fraud played with regard to exchange of two properties- one which never existed and reliance was placed upon the judgment of the Apex Court in 2008 (4) RCR (Civil) 367, 2006 (4)CCC 64 (SC) and 2008 (1) RCR (C) 857 to hold that such a decree was void and deemed never to exist, and accordingly, the award was set aside. While deciding issue Nos.3 & 4, the suit was held to be within limitation and the suit was maintainable and issues regarding estoppel and coming to the Court without clean hands, signing of the plaint and filing of the suit on false and frivolous grounds were decided in favour of the plaintiffs. Issues No.5 to 8 were decided against the defendants and in favour of the plaintiff having not been pressed. Issue No.9 regarding the suit being vague was decided in favour of the plaintiffs and the misuse of the process of Courts was decided against the defendants being not pressed. On the issue whether the suit is barred by the provisions of the Legal Services Authority Act was also decided against the defendants in view of the discussion of issue Nos.1 & 2 while decreeing the suit.
The decree passed by the trial Court was challenged only by Darshan Singh, defendant No.1 before the lower appellate Court which, by detailed judgment, was dismissed by holding that in the absence of a house in village Rattak, there was no valid exchange and reliance was placed in the case of Jattu Ram Vs. Hakam Singh & others AIR 1974 SC 1653. The facts that the plaint(Exhibit PW4/A) showed vague boundaries was also taken into consideration and the admission RSA No.4105 of 2011 7 of defendant No.2, in his written statement that Baja Singh knew that he was not getting anything since there was no house/bara etc at Village Rattak and the story of exchange was absolutely wrong, false, frivolous, baseless and manipulated was taken into account. The plea of the defendants that since Kulwant Singh, the co-defendant No.2 had enimity with Darshan Singh, now therefore, he had deposed against his interest and there was criminal litigation pending between the parties was noticed by the lower appellate Court which, however, rejected this plea that inter se dispute between the brothers would not affect the merits of the case as admittedly there was no ownership or existence of house which was given in exchange for the agricultural land. The fact that Baja Singh was 90/95 years old and living at mercy of his brother was taken into consideration as his daughters were married. The decree/award dated 13.09.2003 and the death of Baja Singh on 09.11.2004 were taken into consideration to come to the conclusion that Darshan Singh was in a dominating position and thus, had played fraud by showing an exchange before the Permanent and Continuous Lok Adalat which had passed the award. The judgments relied upon by the counsel for the defendant-appellant were rejected in view of the fraud played and accordingly, the appeal was dismissed.
Counsel for the defendant-appellant, in the present regular second appeal, has contended that the written statement filed by Baja Singh was signed in English and he was an educated person who voluntarily entered into an exchange deed with his RSA No.4105 of 2011 8 brothers and had appeared before the Lok Adalat to suffer the said award and had never challenged the same before any authority during his lifetime. It is also contended that the award could only be challenged by way of writ petition in view of Section 21 of the Legal Services Authority Act, 1987 wherein it was provided that every award made by the Lok Adalat shall be final and binding to all the parties and no appeal shall lie in any Court of law against the award. Another submission was made that an application before the same Court should be filed for setting aside of the award. Reliance was placed upon M/s Paras Holidays Pvt.Ltd & others Vs. State of Haryana & others 2008(4) RCR (Civil) 367, State of Punjab & another Vs. Jalour Singh & others 2008(1) RCR (Civil) 857, Divisional Social Welfare Office, Nagpur Vs. Narayan Dinkar Gokhale 2009(2) CCC 127 (Bombay) (DB) & Ambika Kumary Vs. State of Kerala 2011(3) CCC 66 (Kerala) (DB) in support of the first proposition. However, the said contention that only a writ petition could be filed to challenge the award is without any basis. Admittedly, in the present case, there are disputed questions of fact which were arising as to whether the plot existed or not and this could only be adduced in evidence, and therefore, the suit was rightly filed and evidence was brought on record by way of summoning the relevant record and thus, the judgments referred above are not applicable. The facts in M/s Paras Holidays Pvt. Ltd case (supra), pertaining to the challenge to an order passed by the Lok Adalat regarding giving RSA No.4105 of 2011 9 refund of an amount on account of not arranging a package tour. The said order had been challenged in writ petition and a Division Bench of this Court observed that the scope of interference in such type of matter is limited and had declined to interfere in the order. Similarly, in the case of State of Punjab Vs. Jalour Singh (Supra), the Hon'ble Supreme Court had taken into consideration that the Lok Adalats are per se only conciliatory and they are not to decide a disputed question and in the said case, the High Court Lok Adalat had decided the issue on merits regarding the claim arising out of the Motors Accident Claims Tribunal and accordingly, it was held that Lok Adalat had exercised power/jurisdiction not vested in it. Similarly, in the case of Divisional Social Welfare Office, Nagpur (supra), the Court only noticed that there is a finality attached to the order of the Lok Adalat, which can only be challenged in a writ petition.
In the present case, it has come on record that there has been fraud played with the plaintiff-respondents No.1 & 2 whose valuable rights has been taken away by their uncles by taking their old father to the Lok Adalat and getting consented award regarding an exchange of plot which never existed. The Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. & others (1994) 1 Supreme Court Cases 1 has observed that fraud in judicial proceedings vitiates all judicial acts and has to be treated as a nullity by every Court whether superior or inferior and can be challenged even in collateral proceedings. The said precedent RSA No.4105 of 2011 10 has been followed in the case of Hazma Hazi Vs. State of Kerala (2006) 7 SCC 416 wherein it has been held that a party which obtains a judgment on the claim of a non-existent fact should not be enabled to enjoy the fruits thereof.
The second submission of the counsel is that an application should have been filed before the same Court and once there is a consent decree, provisions of Order 23 Rule 3-A would come into play is also without any basis. Reliance has been placed upon Smt.Shanti Devi(Dead) Represented by L.R. Vs. Gian Chand 2008(3) Civil Court Cases 032 (P & H), Som Nath Setia Vs. Ravi Setia & others 2009(3) Civil Court Cases 720 (Delhi), Pushpa Devi Bhagat (D) Th.Lr.Smt.Sadhna Rai Vs. Rajinder Singh & others 2006(3) Civil Court Cases 540 (SC) & Jora Singh & others Vs. Sukhdev Singh & others 2009(4) Civil Court Cases 716 (P & H). The said judgments are not applicable to the facts of the present case since in the said cases, the parties to the compromise had challenged the same in subsequent suits. In the present case, there is also an admission on behalf of one of the defendants that Baja Singh knew that he was not getting anything in lieu of the exchange as there was no house existing at Village Rattak and the story of exchange was absolutely wrong and false. Once defendant No.2, Kulwant Singh himself, in his written statement, has admitted that there was fraud, the issue had to be decided in fresh civil proceedings and an application under Order 23 was not maintainable since Baja Singh had also RSA No.4105 of 2011 11 died on 09.11.2004 and the present plaintiff-respondents were not parties to the earlier litigation, and therefore, could not approach the same Court. The submission of the counsel for the defendant-appellant that Baja Singh had not challenged the said proceedings is also without any substance since there was barely a period of more than one year between the consent award on 13.09.2003 and 09.11.2004, the date of his death. The cause of action, in fact, rose to the plaintiff-respondents on the date of death of Baja Singh and when the defendants acted on the said consent award and got mutation done on 08.12.2004.
Keeping all these facts in mind, the present case is one where an attempt has been made to grab the land of the brother and exclude his natural heirs. Even though the brothers were serving the deceased but the deceased never executed any will or desired to bequeath the land to his brothers and had died intestate leaving the plaintiff-respondents as his natural heirs who were thus within their rights to agitate their claim.
Accordingly, the present appeal is dismissed in the absence of any question of law much less any substantial question of law arising in the facts and circumstances of the case.
(G.S.SANDHAWALIA) JUDGE 19.01.2012 sailesh Whether to be referred to the Reporter? Yes/No