RSA No.392 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.392 of 1991
Date of Decision: 2.07.2009
Baldev Singh ..Appellant
Vs.
Gurbachan Singh & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.P.N.Aggarwal, Advocate,
for the appellant.
Mr.A.K.Khunger, Advocate,
for respondent No.1.
Mr.D.S.Rajput, Advocate,
for respondents No.2 and 3.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J.
The plaintiff/appellant by way of this regular second appeal
RSA No.392 of 1991 2
has challenged the judgment and decree dated 7.11.1990, passed by the
learned courts below, vide which suit filed by the plaintiff/appellant for
declaration, to the effect that he is owner of land measuring 30 kanals 19
marlas being half share of land measuring 61 kanals 17 marlas, fully
described in the head-note of the plaint situated at village Jhorayjand alias
Chimney Wala Tehsil Fazilka, District Ferozepore, on the basis of decree
dated 17.12.1980 being son of Smt. Dhan Kaur daughter of Smt.Kishan
Kaur widow of Sunder Singh, and the will dated 27.11.1973 with a
consequential relief of permanent injunction, restraining the defendants
from alienating the suit property, in any manner, to any person and for
possession of the suit land has been ordered to be dismissed.
The plaintiff/appellant brought a suit on the pleadings that
Naranjan Singh son of Sunder Singh son of Ram Singh, maternal uncle of
the plaintiff/appellant was owner in possession of 122 kanals 15 marlas of
land. Naranjan Singh executed a Will on 14.11.1973 in favour of
Smt.Harnam Kaur, defendant No.4, and Smt.Kishan Kaur widow of Sunder
Singh, maternal grand-mother of the plaintiff, which was duly registered. By
way of Will dated 14.11.1973 Naranjan Singh bequeathed his entire land to
Smt.Harnam Kaur and Smt.Kishan Kaur. However, on 27.11.1973
Naranjan Singh in his full senses cancelled the Will dated 14.11.1973 and
executed second Will bequeathing half share of the land measuring 122
kanals 15 marlas to the plaintiff/appellant, and the remaining half share was
bequeathed to Smt.Harnam Kaur and Smt.Kishan Kaur, in equal share, as
life estate. That under the Will they had no right to alienate any part of the
RSA No.392 of 1991 3
land, in any manner, during their life time. After the death of Naranjan
Singh mutation No.770 was sanctioned by the Assistant Collector First
Grade, Fazilka on the basis of Will dated 27.11.1973.
On appeal against the order filed by Smt.Kishan Kaur and
Smt.Harnam Kaur the mutation case was remanded, and the mutation on
the basis of registered Will dated 14.11.1973 was sanctioned on 31.12.1976.
The plaintiff/appellant filed a suit No.50 dated 15.11.1977 for declaration
against Smt. Harnam Kaur etc. in the court of learned Sub Judge, Fazilka.
The learned civil court was pleased to grant ad-interim injunction
restraining the defendants from interfering in the possession of the plaintiff,
and from alienating the suit land, in any way, to any person.
The suit was contested by Smt.Kishan Kaur and Smt.Harnam
Kaur, the ad-interim injunction was confirmed. Despite this Smt.Kishan
Kaur alienated half share of land measuring 122 kanals 15 marlas, thereafter
Smt.Harnam Kaur alienated remaining half share to defendants No.2 and 3.
The suit was finally decreed in favour of the plaintiff and against the
defendants on 17.12.1980 and entire sale made by Smt.Kishan Kaur and
Smt.Harnam Kaur was held illegal.
On the basis of the decree mutation No.920 was sanctioned in
favour of the plaintiff with regard to the land measuring 16 kanals 18
marlas, and the remaining half share was left as life estate of Smt.Harnam
Kaur and Smt. Kishan Kaur as per Will dated 27.11.1973.
Smt.Kishan Kaur died leaving behind no legal heirs so the
plaintiff being maternal grand-son, claimed himself to be the only legal
RSA No.392 of 1991 4
representative of Smt.Kishan Kaur and also on the basis of Will dated
27.11.1973 and also as per as decree dated 17.12.1980 ownership qua the
share of Smt.Kishan Kaur.
It was claimed that the defendants have no right or interest in
the suit property. Defendants No.1 to 3 after the death of Kishan Kaur were
said to be in illegal possession of the suit land. Defendants No.1 to 4
preferred an appeal which was dismissed on 7.9.1982 by the learned
Additional District Judge, Ferozepore. The plaintiff claimed that cause of
action accrued to the plaintiff on 7.9.1982 when the appeal was dismissed.
On notice defendants appeared and filed a separate written
statement. A preliminary objection was taken by defendant No.1, that the
plaintiff had no locus standi to file the present suit as he is neither legal
heir nor successor-in-interest of late Kishan Kaur. The plaintiff was said to
have, not derived any title or interest in the estate of Smt.Kishan Kaur who
was absolute owner of the property in her hand. Defendant No.1 also set up
a plea of bona fide purchaser vide sale deed dated 28.6.1978. It was
further pleaded that defendant No.1 had no notice of defect in the title. It
was claimed that the decree dated 17.12.1980 was nullity having been
passed against a dead person without impleading legal heirs and successor-
in-interest and thus, no right passed to the plaintiff on the basis of said
decree.
The suit was said to be hit by provisions of Order II Rule 2 of
the Code of Civil Procedure (for short the Code), and also that the plaintiff
was estopped by his act and conduct to file the present suit against the
RSA No.392 of 1991 5
defendant-respondents. It was pleaded that the plaintiff was guilty of
fabricating and forging an unregistered Will dated 27.11.1973 which was
managed after the death of Naranjan Singh to swallow the property to
deprive the true owner of their title in the estate of deceased. Smt.Kishan
Kaur widow of Sunder Singh and mother of late Naranjan Singh who was
absolute owner of property and was competent to alienate it in her life time.
It was claimed that there was no clog on her right and as such the sale
effected in favour of defendant No.1 was valid and perfect. Smt.Kishan
Kaur was said to have succeeded to the estate of her son Naranjan Singh
on the basis of valid Will dated 14.11.1973. The suit was stated to be not
maintainable in the present form. It was also said to be bad for non-joinder
of necessary parties i.e. Baldev Singh son of Rattan Singh. However,
subsequently he was impleaded as a party. The suit was said to have been
not properly valued for the purposes of court fee and jurisdiction.
It was claimed that the judgment and decree dated 17.12.1980
passed in suit titled Baldev Singh Vs. Smt.Harnam Kaur had been obtained
by practising fraud on the court by suppression and concealment of true
facts of the alleged Will dated 27.11.1973, which was forged one and not
bearing the thumb impression of executant Naranjan Singh.
On merits similar pleas were taken to deny the facts pleaded by
the plaintiff, and also by taking plea, that defendant No.1 and the plaintiff
though is son of Smt. Dhan Kaur, but Smt.Dhan Kaur was not the daughter
of Smt.Kishan Kaur but daughter of Smt.Bohli. So it was pleaded that the
plaintiff/appellant was not related to Smt.Kishan Kaur, in any way, for
RSA No.392 of 1991 6
inheritance.
Defendants No.2 and 3 filed separate written statement.
However, their stand is not being taken note of as the appellant/plaintiff
before the learned lower appellate court as well as before this court made a
statement that no relief is claimed by the plaintiff against defendants No.2
and 3.
Defendant No.5 Baldev Singh son of Rattan Singh took a plea
that Smt.Krishan Kaur was the absolute owner of the suit land and that she
inherited it from her son Naranjan Singh son of Sunder Singh by way of
registered Will executed in her favour. Will set up by the plaintiff/ appellant
was said to be fictitious. Similar pleas were also taken by other defendants.
Separate replications were filed to the written statements filed
by the defendants by denying pleas taken in the written statements and by
reiterating the one taken in the plaint.
On the pleadings of the parties learned trial court was pleased
to frame the following issues:-
1. Whether the plaintiff is owner of the suit land as alleged?
OPP
2. Whether the plaintiff has no locus standi to file the
present suit? OPD
3. Whether the defendant No.1 is bona fide purchaser for
value without notice of the disputed land? OPD-1
4. Whether decree dated 17.12.1980 is nullity as
alleged?OPD
RSA No.392 of 1991 7
5. Whether the suit is barred under Order 11 Rule 2 CPC?
OPD
6. Whether the plaintiff is estopped to file the present suit
by his own act and conduct? OPD-1
7. Whether Smt.Kishan Kaur succeeded to the estate of her
son Nirnajan Singh on the basis of valid will dated
14.11.1973? OPD
8. Whether the suit is not maintainable in the present form?
OPD
9. Whether the suit is bad for non-joinder of necessary
parties? OPD
10. Whether the suit is not properly valued for the purpose of
court fee and jurisdiction? OPD
11. Whether the suit is time barred? OPD
12. Whether the defendant No.1 is entitled to special costs
under section 35-A CPC? OPD-1
1-A Whether deceased Smt.Kishan Kaur had executed a valid
will dated 1.3.1976 in favour of defendant No.5 Baldev
Singh? OPD-5
4-A Whether judgment and decree dated 17.12.1980 Baldev
Singh Vs. Harnam Kaur has been obtained by fraud
practised on the court by the plaintiff by concealment of
true facts about the alleged will dated 27.11.1973 which
was forged one as alleged? OPD
RSA No.392 of 1991 8
13. Relief.
The parties led evidence in support of their respective stands.
Learned trial court took up issues No.1, 3 to 7, 11 and 4-A
together. Learned trial court took note of the previous litigation between the
parties and noticed that Suit No.50 of 1977 titled Baldev Singh Vs.
Smt.Harnam Kaur was filed on 15.1.1977 by the plaintiff/appellant against
Smt.Harnam Kaur and Smt. Kishan Kaur for declaration that he was owner
in possession of half share of land measuring 122 kanals 15 marlas with a
consequential relief of perpetual injunction restraining the defendants from
alienating the suit property, in any way, to any person.
Suit was subsequently amended vide application dated
11.12.1978 and it was pleaded that Smt.Kishan Kaur expired about 5/6 days
prior to Dipawali day of 1978.
On 8.8.1978 another suit No.240 for declaration was filed by
the plaintiff/appellant by adding Gurbachan Singh as defendant No.3 to
challenge the sale deed dated 28.6.1978 executed by Smt. Kishan Kaur
being against the injunction order dated 14.3.1977. The sale was also said to
be fictitious and without consideration and not binding on the
plaintiff/appellant, but relief of possession was not claimed.
Learned trial court was pleased to consolidate both these suits.
The learned Sub Judge by way of judgment and decree dated 17.12.1980
decreed the suit. However, while decreeing the suit in favour of the
plaintiff/appellant issue as to “Whether Gurbachan Singh is bona fide
purchaser or not? If so its effect?, was not adjudicated though it was the
RSA No.392 of 1991 9
only issue framed in Suit No.50.
Another suit No.333 dated 23.7.1975 Ex.PW 2/1 was filed by
Smt.Harnam Kaur against Kishan Kaur and Baldev Singh for perpetual
injunction restraining the defendants from disposing specific khasra No. of
entire suit land measuring 122 kanals 15 marlas owned by Smt.Harnam
Kaur having half share in the land along with defendant No.1 Smt.Kishan
Kaur (in that suit) in which one half share of the defendant Baldev Singh
son of Jarnail Singh resident of Village Bannawali (in that suit No.333) was
admitted by pleading joint possession of the parties. However, the suit file
or the judgment passed in the said suit was not placed on the file of this
case.
Plea of the plaintiff/appellant that once the Will dated
27.11.1973 had been held valid and binding on the parties by the competent
court of jurisdiction vide its judgment Ex.P.6 and thereafter affirmed by the
learned lower appellate court vide judgment Ex.P.8, the defendants were not
competent to reagitate the validity of the Will.
The learned trial court was pleased to hold that the proposition
raised by the plaintiff/appellant was applicable to both the parties. Learned
trial court was pleased to observe that in the earlier suit the
plaintiff/appellant had knowledge about the alienation of the suit land by
limited owner Smt. Kishan Kaur and Smt. Harnam Kaur to the defendants.
He got the sale deed declared as illegal and not binding on the rights of the
plaintiff from the court, but at the same time and if he has chosen to come
to the court second time on a different cause of action, then the defendants
RSA No.392 of 1991 10
could certainly challenge the Will in question. The learned court also held
that if the contention of the plaintiff/appellant is taken into consideration
that the suit property is not the same and that the parties are also not the
same, and further that the rights of the parties are also different than his
earlier suit. Then defendant No.1 can claimed himself to be bona fide
purchaser without notice for consideration and in the present suit. Learned
trial court was pleased to hold that defendants No.2, 3 and 5 were not
parties to the earlier suit. It was also held that the suit property is same as it
related to the inheritance and succession of the property of Naranjan Singh.
It did not matter if the same was split into part by alienation made by
Smt.Kishan Kaur and Smt.Harnam Kaur and the plaintiff/appellant had
claimed himself to be owner of the entire land left by Naranjan Singh
except the half share given to two ladies as limited estate as per Will dated
27.11.1973 under which Smt.Harnam Kaur had no right to alienate the
same.
Learned trial court was pleased to hold that the plaintiff at the
time of execution of sale deed had the knowledge so it was for him to have
got decided the title of the entire estate left by Naranjan Singh in the earlier
suit. The learned court further observed that in the earlier judgment Ex.P6,
issue No.1 of Suit No.240 with regard to defendant Gurbachan Singh being
bona fide purchaser without notice was not decided though an issue was
struck on the pleadings of the parties, which would mean that plea of
Gurbachan Singh being bona fide purchaser was accepted. The learned
court also observed that the plaintiff/appellant had not filed any appeal to
RSA No.392 of 1991 11
get his issue decided by the appellate court. The plaintiff/appellant had
claimed that cause of action arose to him on 7.9.1982 to file the present suit
when the appeal of the defendant was dismissed vide judgment Ex.P.8.
Learned trial court was pleased to hold that this plea has been raised to
avoid period of limitation as the cause of action arose to the plaintiff on
execution of the sale deeds Ex.P.1 and P.2 on 28.6.1978 and 21.2.1979.
Learned trial court, therefore, was pleased to hold that on the
death of Smt.Kishan Kaur, plaintiff/appellant he had two options either to
file a fresh suit to get himself declared as owner of the suit property after
the death of Smt. Kishan Kaur or get it amended by impleading legal heirs
of Smt.Kishan Kaur.
Plaintiff/appellant on the death of Smt.Kishan Kaur moved an
application to implead Baldev Singh plaintiff, Smt.Harnam Kaur and
Smt.Dhankaur legal representatives of Smt.Kishan Kaur. Said application
was allowed. Therefore, it could not be said that right to sue was not in
existence at the time of first suit. The plaintiff had also challenged the
alienation in Suit No.240 by amending his plaint to get inheritance of
Smt.Kishan Kaur decided by the court along with inheritance of
S.Naranjan Singh between the parties. Learned trial court, therefore held
that the plaintiff/appellant could not file the present suit as per para No.9 of
the plaint, copy of which is Ex.PW 5/A, wherein it was pleaded that
Smt.Kishan Kaur defendant had expired and that the defendants were her
legal heirs. Learned trial court, therefore, was pleased to hold that it was for
the plaintiff to have get decided succession and inheritance of Smt.Kishan
RSA No.392 of 1991 12
Kaur in that suit itself when the suit was contested but the plaintiff waited
for decision of the appellate court. The learned court also noticed that the
plaintiff/appellant had admitted defendant No.1 and other vendees of land
owned by Smt.Kishan Kaur and Smt.Harnam Kaur true and genuine
purchaser of the same. It was also within the knowledge of the plaintiff/
appellant that defendants were in possession of the property in dispute on
the basis of alienation in question but he did not resort to any available
remedy to him from which it could be inferred that the plaintiff/appellant
had no objection about the alienation of the suit land by Smt.Kishan Kaur
and Smt.Harnam Kaur, even though they were held owners as per their
share. The sale of the suit land by Smt.Kishan Kaur and Smt.Harnam Kaur
was admitted by the plaintiff in the pleadings. However, nothing was
pleaded when he came to know about his alienation. Thus, presumption was
drawn that the plaintiff/appellant was in knowledge of the sale deeds when
these were executed i.e. on 28.6.1978 and 21.2.1979, respectively. Thus, the
learned trial court was pleased to hold that the cause of action accrued to
the plaintiff/appellant on the date of sale.
The learned court held that the suit for declaration was to be
filed within a period of 3 years from October/November, 1978 whereas the
suit was filed only on 4.1.1985 and therefore, it was not within limitation. It
was held that the plaintiff/appellant was not entitled to declaration with a
consequential relief of possession. Learned trial court placed reliance on
the judgment of Hon’ble Andhra Pradesh High Court in the case of
M.Thimma Raju and others Vs. Dronmaju Vankata Krishana Rao and
RSA No.392 of 1991 13
others AIR 1978 Andhra Pradesh 385 to hold that the suit for possession
of the plaintiff/appellant would be barred under Order 2 Rule 2 of the Code
of Civil Procedure (for short the Code). The learned trial court was further
pleased to hold that the principle of res judicata was outside the region of
fraud or collusion.
Learned trial court further held that if the suit filed by the
plaintiff was on the basis of right which was not in existence when the
previous suit and that the suit land was different than that of previous suit
then defendant/respondents were entitled to challenge the validity of the
Will in question.
Learned trial court was pleased to hold that validity of Will
which stood upheld in the previous judgment could not be taken to be
gospel truth, especially when the same was challenged being outcome of
fraud played with the court. Learned trial court was further pleased to hold
that validity of judgment and decree can be challenged under section 44 of
the Indian Evidence Act being exception to Section 11 of the Code. Section
44 of the Indian Evidence Act contains in built safe guards against orders
obtained by fraud and collusion.
Learned trial court was further pleased to hold that the court
could give independent finding as to whether the Will Ex.PW 4/A is the
outcome of collusion and fraud played on court by the plaintiff/appellant.
On appreciation of evidence thereafter concurrent finding has been recorded
that the Will propounded by the plaintiff/appellant was outcome of fraud
and misrepresentation and therefore, was not a valid document. Learned
RSA No.392 of 1991 14
trial court was pleased to observe that none of the attesting witnesses was
examined to prove the Will even though one of the attesting witnesses was
alive. The Will, therefore, was not proved as per provisions of Section 63 of
the Succession Act and Section 68 of the Evidence Act.
Learned trial court was further pleased to hold that Ram Lal
Madan examined by the plaintiff/appellant also did not testify that the Will
was thumb marked by the testator in the presence of the attesting witnesses
Santa Singh and Major Singh. The learned court further held that specific
foot note on the Will that the Will has been scribed on the identification of
Sarpanch Major Singh, as attesting witness in the court compound by an
Advocate in the office of Sub Registrar itself appears to be doubtful. That
from perusal of note an inference could be drawn that the scribe wanted to
exculpate from forgery of the Will of a dead person by throwing the
responsibility on Major Singh. Major Singh was said to be master mind of
forgery.
Learned courts below also held that non-registration of the Will
when the testator was in the court compound was also a serious suspicious
circumstance as the earlier Will dated 14.11.1973 was registered Will. The
learned court further noticed that Ram Lal Madan PW 4 avoided to affirm
the Will. The Will was also found to be not scribed by regular deed writer,
as the regular deed writer would not have prepared an antedated Will. The
learned trial court further noticed that testator Naranjan Singh in usual
course had been getting the documents scribed from Kanshi Ram regular
deed writer from whom he had got scribed Will Ex.DW8/A dated
RSA No.392 of 1991 15
14.11.1973. Even receipt Ex.D.3 with regard to the bearing expenses of sale
was got scribed from Kanshi Ram deed writer in the year 1969.
Similarly, sale deed Ex.D.1 was also scribed by Kanshi Ram
whose attesting witnesses was testator Naranjan Singh and therefore, there
was no possibility of Naranjan Singh deviating from his usual practice.
Therefore, the learned trial court was pleased to hold that the plaintiff/
appellant failed to explain the suspicious circumstances surrounding the
Will.
On the other hand, defendants, in order to prove the Will to
be forged one, examined an Expert who compared the signatures of
Naranjan Singh on the disputed Will dated 27.11.1973 Ex.PW 4/A with the
thumb impression of Naranjan Singh on admitted Will dated 14.11.1973
Ex.DW 8/A. He had opined that the Will Ex.PW 4/A did not bear the thumb
impression of Naranjan Singh. Thus, the learned court found that the Will
was forged document as testified by PW 9 Satwant Puri. Learned trial
court, therefore, held that by producing a forged Will in the court the
plaintiff/appellant practised fraud with the court while obtaining judgment
and decree Ex.P.6 as said fraud has been discovered in the case. Learned
trial court, therefore, held that this Will was not binding on the defendants
in the subsequent suit.
The plea of the plaintiff that there was admission made by
Smt.Kishan Kaur and Smt.Harnam Kaur regarding the execution of the
Will in suit No.333 and reliance on the compromise Ex.DW 2/A could be
of no help as it could not be said to be voluntary. Learned trial court was
RSA No.392 of 1991 16
pleased to hold that admission of forged document which created title
would not be binding on the defendants. Learned trial court was further
pleased to hold that admission made in exclusion of legal rights cannot be
binding on the maker of such admission. Learned trial court further held
that defendants were bona fide purchasers for valuable consideration
without notice and further that the judgment and decree was nullity.
Defendants No.1 to 3 were held entitled to retain possession of the land
already in their possession and were further held entitled to possession of
the land taken by the plaintiff in pursuance to the judgment and decree
Exs.P.6 to P.9. The plaintiff/appellant was directed to deliver possession of
the land mentioned in the sale deeds Ex.P.2 and P.2 to defendants as they
were held entitled to restitution of property.
In view of the findings recorded above, learned trial court was
pleased to hold that the plaintiff/appellant was not owner of the suit land
and further that defendant No.1 was bona fide purchaser for valuable
consideration without notice of the disputed, and that the decree dated
17.12.1980 was obtained by practising fraud on the court as such it was
nullity.
The suit was also held to be barred under Order 2 Rule 2 of the
Code. Plea of estoppel was also decided against the plaintiff/appellant. It
was further held that Smt.Kishan Kaur and Smt.Harnam Kaur succeeded to
the estate of her son and husband Nirnajan Singh, respectively, on the basis
of the Will dated 14.11.1973, which was valid. The suit was ` held to be
time barred.
RSA No.392 of 1991 17
Issues No.1, 3 to 7, 11 and 4-A were decided against the
plaintiff/appellant and in favour of the defendant/respondent.
Issue No.2 was decided in favour of the plaintiff being not
pressed.
Issue No.8 was also decided in favour of the plaintiff/appellant,
whereas issue No.9 was said to be redundant. Issue No.10 was decided in
favour of the plaintiff having not been pressed.
Similarly, issue No.12 was also decided in favour of the
plaintiff/appellant being not pressed. Issue No.1-A was said to have become
redundant.
In view of the findings referred to above, suit filed by the
plaintiff/appellant for declaration with consequential relief of permanent
injunction and possession was ordered to be dismissed with costs.
The judgment and decrees Ex.P.6 to P.9 were held to be nullity
having been obtained by fraud. Defendants No.2 and 3 were held entitled to
possession of the land mentioned in possession of plaintiff/appellant as per
provisions of Section 44 of the Indian Evidence Act, by way of restitution
of possession.
Plaintiff/appellant preferred an appeal.
Learned lower appellate court while affirming the findings of
the learned trial court modified the findings qua the relief of restitution of
possession of land measuring 60 kanals 18 marlas as relief was not claimed
by way of counter claim. The concurrent findings of fact holding that will
propounded by plaintiff/appellant was forged document, has been
RSA No.392 of 1991 18
challenged by Shri P.N.Aggarwal, learned counsel appearing on behalf of
the appellant on technical grounds by raising following substantial
questions of law:-
1. Whether it is well established that in order that fraud may
be ground for vacating a judgment, it must be a fraud that
is extrinsic or collateral to everything that has been
adjudicated upon and not such as has been or must be
deemed to have been dealt with by the court that passed
the judgment sought to be vacated?
2. Whether where the parties have the opportunity of
putting their respective cause before the court and the
court has come to a conclusion on the evidence, the rule
of res judicata comes into operation, and it is not open to
the defeated party to re-open the matter by merely
alleging that the evidence and the averments which the
court believed, were untrue?
3. Whether the matter in question is res judicata under
Section 11 of the Code of Civil Procedure, Section 44 of
the Evidence Act is not applicable to the present case and
the final and binding judgments and decrees already
passed regarding the legality and validity of the will in
question dated 27.11.1973 Ex.PW 4/A cannot be ignored
or considered null and void in the subsequent suit?
4. Whether the defendants are entitled in the present suit to
RSA No.392 of 1991 19question the legality and validity of the will dated
27.11.1973 Ex.PW 4/A already duly adjudicated upon
and decided by the earlier judgments and decrees which
are binding upon them in all respects.
5. Whether the judgments and decrees Ex.P.6 and P.7 of the
learned Sub Judge Ist Class,Fazilka and the learned
Additional District Judge Ferozepur Ex.P.8, which are
between the same parties, regarding the same land in
question, and based on the will dated 27.11.1973,
amount to res judicata, and the legality and validity of
the above will cannot be gone into afresh in the
subsequent suit out of which the present appeal arises?
6. Whether the impugned judgments and decrees of the
courts below are not vitiated as based on wrong
premises and as the judgment and decree dated
17.12.1980 Ex.P.6 and P.7 were not obtained by any
fraud practised on the court by the plaintiff/appellant or
by concealment of any true facts and alleged, especially
when there is clear cut admission of Smt.Kishan Kaur
and Smt.Harnam Kaur about the validity and due
execution of the Will dated 27.11.1973 by Naranjan
Singh, deceased, and the rights of the parties based upon
this will, and in view of the compromise dated 8.5.1974
Ex.PW 2/B and the affidavit Ex.PW 3/A?
RSA No.392 of 1991 20
7. Whether Smt.Kishan Kaur had only limited rights in the
land in question by virtue of the will dated 27.11.1973
Ex.PW 4/A and she had no right of alienating it by sale,
mortgage or in any other manner?
8. Whether the suit of the plaintiff/appellant was within
time as it was a suit based on title and the
plaintiff/appellant became entitled to possession of the
land in question on the death of Smt.Kishan Kaur which
occurred in October, 1978, and the suit of the plaintiff
being based on title, under Article 65 of the Limitation
Act, 1963, the period of limitation is 12 years when the
possession of the defendants becomes adverse to the
plaintiff, and the suit of the plaintiff appellant is also
within time even from 7.9.1982 when the appeal of
Gurbachan Singh and Harnam Kaur, the present
respondents Nos.1 and 4, was dismissed by the learned
Additional District Judge, Ferozepur?
9. Whether the defendant/respondent No.1 can be termed as
a bona fide vendee who had purchased the land in
question with full knowledge of the limited rights of the
vendor Smt.Kishan Kaur and issuance of temporary
injunction by the Court prior to the purchase of the land
by him?
10. Whether the suit of the plaintiff/appellant is barred under
RSA No.392 of 1991 21Order 2 Rule 2 of the Code of Civil Procedure in spitie
of the fact that the right to possession of the land in
question accrued to the plaintiff/appellant on the death of
Smt.Kishan Kaur in October, 1978 i.e. after the filing of
the two suits Nos. 50 and 240?
In support of the substantial questions of law learned counsel
for the appellant vehemently contended that in the present case, plea of
fraud and misrepresentation was not available to the parties. As
defendant/respondents and their predecessors failed to lead any evidence
in previous suit the Will was upheld. It was not open to the court in the
subsequent suit to have gone into the question of validity of Will, on the
ground that the decree was obtained by fraud or misrepresentation. The
contention of the learned counsel for the appellant was, that fraud could be
a ground for holding the judgment to be nullity, if allegations of fraud are
extrinsic or collateral to the adjudication, and not the one that has been or
dealt with by the court in the previous suit.
In support of this contention learned counsel for the appellant
placed reliance on a Division Bench judgment of Patna High Court in the
case of Jangal Chaudhry Vs. Laljit Pasban and Ors. AIR 1921 Patna
12, wherein Hon’ble Division Bench of Patna High Court was pleased to
lay down, that although a decree can be set aside on the ground of fraud but
if the question has already been agitated between the same parties and
decided by a court of competent jurisdiction then the matter is res judicata
and cannot be reopened again between the same parties in the subsequent
RSA No.392 of 1991 22
suit.
Reliance was also placed on the judgment of Hon’ble Rangoon
High Court in the case of K.E.Musthan Vs. Babu Mohendra Nath Singh
AIR 1924 Rangoon 119, wherein Hon’ble Rangoon High Court was
pleased to lay down that the fraud necessary to set aside a decree upon the
ground of fraud must be a fraud extraneous to everything adjudicated upon
by the court and not any fraud already dealt with by the court. If fraud was
not extraneous, the subsequent suit would not be maintainable.
Thereafter reliance was placed on the judgment of Hon’ble
Division Bench of Gujarat High Court in the case of Bal Chanchal Vs.
Ganpatram Jadavji and others AIR 1965 Gujarat 145, wherein Hon’ble
Gujarat High Court was pleaded to lay down that where the decree or award
is passed ex parte the allegations of leading of false evidence or tendering
of forged documents cannot be said to be a fraud on court unless it is shown
that the leading of that false evidence had the effect of preventing the
plaintiff from putting his case before the court.
The contention of the learned counsel, therefore, was that in
the present case Smt Kishan Kaur and Smt.Harnam Kuar had failed to
contest the Will on the ground of Will being forged document and having
failed, it was not open to defendant No.1 to raise said plea in the subsequent
suit being successor-in-interest from said party.
Reliance was thereafter placed on the judgment of Hon’ble
Madras High Court in the case of The Weavers Mills Ltd. Vs. Balkis
Ammal and others AIR 1969 Madras 462, wherein Hon’ble Madras High
RSA No.392 of 1991 23
Court has been pleased to lay down that a suit does not lie to set aside a
judgment in a previous suit on the ground that it was obtained by perjured
evidence. In order that fraud may be a ground for vacating a judgment, it
must be a fraud that is extrinsic or collateral to every thing, that has been
adjudicated upon not the one that has been or must be deemed to have been
dealt with by the Court. Suppression of evidence and even negligent
conduct in the prior litigation would not be proper ground for setting aside
an earlier order.
Finally, reliance was placed on the judgment of Kerala High
Court in the case of Keepattel Bappu alias Moidunni and others Vs.
Mugharikutty’s son Kizhakke Valappil Muhammad and another AIR
1993 Kerala 273, wherein Hon’ble Kerala High Court has been pleased to
lay down that a ground of fraud for vacating the judgment relied upon has to
be extraneous to everything adjudicated upon in the judgment relied upon.
The contention of the learned counsel for the appellant,
therefore, is that the learned courts below committed an error in holding the
judgment and decree obtained by the plaintiff/appellant to be outcome of
fraud and misrepresenttion and not binding upon the defendants. Learned
counsel for the appellant, therefore, contended that substantial questions of
law Nos. 1 to 6 deserve to be decided in favour of the appellant and the
impugned judgment and decree deserves to be set aside.
Mr.A.K.Khungar, learned counsel appearing on behalf of
respondent No.1 supported the judgment and decree passed by the learned
courts below by placing reliance on the judgment of Hon’ble Supreme Court
RSA No.392 of 1991 24
in the case of S.P.Chengalvaraya Naidu Vs. Jagannath 1994 (2) CCC
131, wherein Hon’ble Supreme Court has been pleased to lay down as
under:-
” “Fraud avoids all judicial acts, ecclesiastical or temporal”
observed Chief Justice Edward Coke of England about three
centuries ago. It is the 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.
Xx xx xx
7. The High Court, in our view, fell into patent error. The
short question before the High Court was whether in the facts
and circumstances of this case, Jagannath obtained the
preliminary decree by playing fraud on the court. The High
Court, however, went haywire and made observations which
are wholly perverse. We do not agree with the High Court
that “there is no legal duty cast upon the plaintiff to come to
court with a true case and prove it by true evidence” The
principle of “finality of litigation” cannot be pressed to the
extent of such an absurdity that it becomes an engine of fraud
in the hands of dishonest litigants. The courts of law are
RSA No.392 of 1991 25meant for imparting justice between the parties. One who
comes to the court, must come with clean hands. We are
constrained to say that more often than not, process of the
court is being abused. Property-grabbers, tax-evaders, bank-
loan-dodgers and other unscrupulous persons from all
walks of life find the court-process a convenient lever to
retain the illegal-gains indefinitely. We have no hesitation
to say that a person, who’s case is based on falsehood,
has no right to approach the court. He can be summarily
thrown out at any stage of the litigation.
8. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud
on the court. A fraud is an act of deliberate
deception with the design of securing something by taking
unfair advantage of another. It is a deception in order to gain
by another’s loss. It is a cheating intended to get an
advantage. Jagannath was working as a clerk with Chunilal
Sowcar. He purchased the property in the court auction
on behalf of Chunilal Sowcar. He had, on his own
volition, executed the registered release deed (Ex. B-15) in
favour of Chunilal Sowcar regarding the property in dispute.
He knew that the appellants had paid the total decretal amount
to his master Chunilal Sowcar. Without disclosing all these
facts, he filed the suit for the partition of the property on the
RSA No.392 of 1991 26ground that he had purchased the property on his own behalf
and not on behalf of Chunilal Sowcar. Non-production and
even non-mentioning of the release deed at the trial is
tantamount to playing fraud on the court. We do not agree
with the observations of the High Court that the appellants-
defendants could have easily produced the certified
registered copy of Ex. B-15 and non-suited the plaintiff. A
litigant, who approaches the court, is bound to produce all the
documents executed by him which are relevant to the litigation.
If he withholds a vital document in order to gain advantage on
the other side then he would be guilty of playing fraud on the
court as well as on the opposite party.”
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of Hamza Haji Vs. State of Kerala 2006 (4) Civil Court
Cases 407, wherein Hon’ble Supreme Court was pleased to lay down that a
decree or judgment obtained by playing fraud on court is a nullity and non
est in the eye of law. If the case founded on false plea or on a claim which
is known to be false and documents or transaction which have relevance in
deciding claim are suppressed then it amounts to fraud. Said judgment and
decree can be challenged even in collateral proceedings.
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of Ganpatbhai Mahijibhai Solanki Vs. State of
Gujarat 2008 (2) Law Herald (SC) 1223, wherein Hon’ble Supreme Court
was pleased to lay down that if an order is obtained by commission of fraud
RSA No.392 of 1991 27
then even the principles of natural justice are not required to be complied
with for setting aisle the same.
It was the final contention of the learned counsel for the
appellant that in exercise of powers under section 100 of the Code the
concurrent findings of fact recorded by the learned courts below holding
the Will be to forged and fictitious document are not open to challenge by
re-appreciating the evidence.
In order to appreciate the controversy raised it is pertinent to
notice here that the plaintiff/appellant gave up challenge to the sale deed
Ex.P.2 dated 21.2.1979 executed by Smt.Harnam Kaur in favour of
defendants No.2 and 3 and the suit qua defendants No.2 and 3 was ordered
to be dismissed. Challenge therefore, was only made to the sale deed made
by Smt.Kishan Kaur by claiming that the plaintiff/ appellant had become
owner on the basis of Will dated 27.11.1973 qua the share of Kishan Kaur.
Learned courts below decided the question raised by holding
that the plea of res judicata was not applicable in case of a fraud by
invoking provisions of section 44 of the Evidence Act. Findings of the
learned courts below holding that the Will was not valid, therefore, cannot
be sustained, as the plea that the Will was not validly executed was
available to the defendants in the previous suit, where it was upheld and has
attained finality. Therefore, the substantial questions of law referred to
above are decided in favour of the appellants. It is held that it was not open
to the defendant/respondents to challenge the Will dated 27.11.1972.
In the subsequent suit, as fraud pleaded was not intrinsic or
RSA No.392 of 1991 28
collateral to the point adjudicated. The judgments of Hon’ble Supreme
Court relied upon by the defendant/respondents are, therefore, not
applicable. It is also pertinent to mention here that the learned counsel for
the appellant had also placed reliance on the following judgments of
Hon’ble Supreme Court in the cases of:-
1. State of Utta Pradesh Vs. Nawab Hussain AIR 1977
SC 1680;
2. Kumaraswami Gounder and others Vs.
D.R.Nanjappa Gounder (dead) and others AIR 1978
Madras 285;
3. Mahalingeshwara Devaru and another Vs.
Seetharama Bhatta and Anr.;
4. AIR 1978 Karnataka 213, Amarendra Komalam &
Anr. Vs. Usha Sinha & Anr. 2005 (3) CCC 228; and
5. Mangal Das & Ors. Vs. Johri Son of Mohar Singh
2006 (3) CCC 273;
to contend that issue of fact once determined finally by the court of
competent jurisdiction, when comes directly in question in subsequent
proceedings between the same parties, then the persons cannot be allowed to
raise the same question which stood determined earlier by the competent
court. Thus, it is to be held that plea to challenge the Will was barred on
principle of res judicata.
On substantial question No.10, learned counsel for the
appellant vehemently contended that the earlier suit filed by the plaintiff/
RSA No.392 of 1991 29
appellant was for declaration, that the sale deed dated 28.6.1978 executed
by Smt.Kishan Kaur, in spite of temporary injunction by the civil court in
pending suit and therefore, was null and void and had no effect on the
rights of the plaintiff whereas subsequent suit was for possession on
account of death of Smt.Kishan Kaur the limited owner, and further to
restrain the vendees/defendants from alienating the suit land further in any
manner. The contention of the learned counsel for the appellant was that as
the subsequent suit was based on separate cause of action, therefore, was
not barred under Order 2 Rule 2 of the Code. The findings recorded by the
learned courts below, therefore, cannot be sustained. In support of this
contention learned counsel for the appellant placed reliance on the judgment
of Hon’ble Supreme Court in the case of Marwari Kumhar and others Vs.
Bhagwanpuri Guru Ganeshpuri and Anr. (2000) 6 SCC 735, wherein
Hon’ble Supreme Court was pleased to hold that where in earlier suit for
declaration relief of possession has not been claimed suit for possession was
not barred under Order 2 Rule 2 of the Code. However, reading of the
judgment shows that the suit was held to be not barred under Order 2 Rule
2 of the Code on facts of that case, and it has not been laid down as a
precedent, that in all suits for declaration if relief of possession is not
claimed second suit would be competent. The plea raised is prima facie
contrary to the provisions of section 34 of the Specific Relief Act, which
provides that mere suit for declaration would not be competent when
consequential relief of possession is available.
Learned counsel for the appellant, thereafter, placed reliance on
RSA No.392 of 1991 30
the judgment of Hon’ble Supreme Court in the case of Kunjan Nair
Sivaraman Nair Vs. Narayanan Nair and others (2004) 3 Supreme
Court Cases 277 to contend that suit filed by the plaintiff/appellant was
not barred under Order 2 Rule 2 of the Code. However, this judgment again
was on peculiar facts of the case. Rather the Hon’ble Supreme Court was
pleased to lay down as under:-
” Order 2 concerns framing of a suit and lays down the
general principle that the plaintiff shall include whole of his
claim in the framing of the suit which the plaintiff is entitled to
make in respect of a cause of action; and if he does not do so
then he is visited with the consequences indicated therein. In
other words, it provides that all reliefs arising out of the same
cause of action shall be set out in one and the same suit, and
further prescribes the consequences if the plaintiff/respondent
omits to do so. Order 2 Rule 2 centres round one and the same
cause of action. The salutary principle behind Order 2 Rule 2
is that a defendant or defendants should not be vexed time and
again for the same cause by splitting the claim and the reliefs
for being indicated in successive litigation. It is,
therefore,provided that the plaintiff-respondent must not
abandon any part of the claim without the leave of the court and
must claim the whole relief or entire bundle of reliefs available
to him in respect of that very same cause of action. Otherwise,
he will thereafter be precluded from so doing in any subsequent
RSA No.392 of 1991 31litigation that he may commence.
So far as Order 2 Rule 2 (3) is concerned, before the
second suit of the plaintiff/respondent can be held to be barred
by the same, it must be shown that the second suit is based on
the same, that is identical, cause of action on which the earlier
suit was based.
The illustrations given under the rule clearly bring out this
position. If the cause of action is the same in both the suits and
if in the earlier suit the plaintiff/respondent had not sued for
any of the reliefs available to it on the basis of that cause of
action, the reliefs which it had omitted to press into service,
except with the leave of the court, in that suit cannot be
subsequently prayed for. The rule is directed to securing the
exhaustion of the relief in respect of a cause of action and not
to the inclusion in one and the same action of different causes
of action, even though they arise from the same transaction.
One great criterion, when the question arises as to whether the
cause of action in the subsequent suit is identical with that in
the first suit, is whether the same evidence will maintain both
actions.”
Reading of the judgment of Hon’ble Supreme Court shows that
when a relief is available to a party in a previous suit and same is not
claimed then the subsequent suit is barred under Order 2 Rule 2 of the
Code.
RSA No.392 of 1991 32
In the present case it may be noticed that the plaintiff/appellant
has based his claim on the basis of Will said to have been executed in his
favour and that admittedly the sale deed was executed by Smt.Kishan Kaur,
therefore, the plaintiff/appellant had a right to seek possession by
challenging the alienation made by Smt.Kishan Kaur. The judgment relied
upon by the learned counsel of the appellant, therefore, does not advance
the case of the plaintiff/appellant.
Reliance was also placed on the judgment of Hon’ble Rajasthan
High Court in the case of Nand Kishore and another Vs. Prabhu Narain
and others AIR 1976 Rajasthan 20 to contend that subsequent suit for
possession after declaration of ownership is not barred by Order 2 Rule 2
of the Code being based on new cause of action.
This judgment again is of no help to the learned counsel for the
appellant as admittedly the plaintiff/appellant had challenged the sale after
the death of Smt.Kishan Kaur, therefore, the cause of action to claim
possession along with declaration was available to the plaintiff/appellant
while impleading defendant No.1 as party to the suit being the vendee
through Smt.Kishan Kaur. Furthermore, the provisions of Order 2 Rule 63
stand omitted by the Code of Civil Procedure (Amendment Act, 1976,
hence no benefit can be drawn by the appellant from this judgment also.
Learned counsel for the appellant, thereafter placed reliance on
the judgment of Hon’ble Mysore High Court in the case of B.Shambumal
Gangaram and another Vs. The State Bank of Mysore, AIR 1971
Mysore 156 to contend that plea under Order 2 Rule 2 of the Code is
RSA No.392 of 1991 33
liable to fail when there is no identity of causes of action in prior and
subsequent suit.
It may be mentioned here again that in the present case learned
courts below have rightly held that there was identity of cause of action as
the basis of relief claimed in both the cases is the Will executed in his
favour, which though was a forged and fabricated document but has been
upheld on technical ground of res judicata, because of finding in the
previous litigation between the parties. It is also pertinent to mention here
that the learned courts below rightly relied upon the full Bench judgment of
Andhra Pradesh High Court in the case of M.Thimma Raju and others
Vs. Dronmaju Venkata Krishana Rao and others (supra), wherein
Hon’ble Andhra Pradesh High Court was pleased to lay down as under:-
” In a suit for partition and separate possession some lands
were sold during the pendency of the suit, the plaint was
amended bringing the purchasers on record, their purchases
were impeached and decree was sought against them. Since no
court fee was paid for the relief of possession, it was not
granted. Held a second suit against the purchasers for
possession being one between the same parties and on the same
cause of action was held barred by Order 11 Rule 2 CPC. Held
further, relief of possession which could have been sought in
the previous suit not having been sought, the second suit for
relief was also barred by the principle of res judicata.”
This judgment is based on the law laid down by Hon’ble
RSA No.392 of 1991 34
Supreme Court in AIR 1964 SC 1810 and AIR 1961 SC 1418.
No fault can be found with the findings recorded by the learned
courts below holding that subsequent suit filed by the plaintiff/appellant
was barred under Order 2 Rule 2 of the Code. The substantial question of
law No.10 is decided against the appellant and in favour of the
defendant/respondents.
On 8th substantial question of law, learned counsel for the
appellant vehemently contended that the findings recorded by the learned
courts below holding the suit to be barred by limitation cannot be
sustained, as the suit filed by the plaintiff/appellant was based on title, and
that the appellant became entitled to possession of the suit land, on the
death of Smt.Kishan Kaur which occurred in October, 1978. It was
contended that limitation for seeking possession was 12 years and that the
learned courts below wrongly held it to be barred by limitation.
This contention is liable to be rejected on more than one
grounds. In order to make out a cause of action to file suit, learned counsel
for the appellant has taken the date to be the date of dismissal of appeal,
whereas for the purpose of possession it was contended that cause of action
accrued to the plaintiff/appellant in October, 1970. Question of law raised
itself supports the findings recorded by the learned courts below upholding
that the suit filed by the plaintiff/appellant was barred under Order 2 Rule 2
of the Code as the cause of action to seek possession has accrued to the
plaintiff during the pendency of previous suit. The subsequent vendee i.e.
defendant No.2 was impleaded as party in the previous suit, being necessary
RSA No.392 of 1991 35
party, but relief of possession was not claimed.
Furthermore, the frame of the suit itself would show that it was
not a suit for possession, but for declaration to the effect that the plaintiff
was owner of the land measuring 30 kanals 19 marlas being half share of
the land measuring 61 kanals 17 marlas fully described in head note of the
plaint being son of Smt.Dhan Kaur daughter of Kishan Kaur widow of
Sunder Singh and on the basis of Will dated 27.11.1973 with consequential
relief of permanent injunction restraining the defendants from alienating the
suit land, in any manner, to any person and for possession of the suit land.
Thus, it would be seen that the possession was claimed as a
consequential relief to the decree for declaration and therefore, the learned
courts below rightly held the suit to be barred by limitation. The substantial
question No.8 is also answered against the appellant.
No arguments were addressed on substantial question No.7. In
view of the findings recorded above, this question of law raised is rendered
redundant and does not arise for consideration.
On substantial question of law No. 9, learned counsel for the
appellant contended that the learned courts below committed an error in
holding defendant No.1 to be bona fide vendee, who purchased the land in
question with full knowledge of limited right from the vendor Smt.Kishan
Kaur and issuance of temporary injunction by the court prior to purchase by
the suit land.
This plea of the learned counsel for the appellant also cannot be
accepted as by his own act and conduct the plaintiff/appellant allowed
RSA No.392 of 1991 36
Smt.Kishan Kaur to be represented as ostensible owner, by not seeking
possession from defendant No.1; rather the plaintiff/appellant remained
silent when possession was taken and thereafter also he did not take any
step to seek possession for more than 3 years by seeking declaration.
Learned courts below, therefore, rightly came to the conclusion that
defendant No.1 was bona fide purchaser for consideration. The substantial
question of law No.9 raised is also answered against the appellant/plaintiff.
In view of answers to the substantial questions of law raised,
the appeal is dismissed. The judgment and decree passed by the learned
lower appellate court is affirmed but with no order as to costs.
2 .07.2009 (Vinod K.Sharma) rp Judge