Bachan Kaur And Another vs Navtej Singh And Others on 4 November, 2009

RSA No.2634 of 2008 (O&M)                                                   1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

                                R.S.A. No. 2634 of 2008 (O&M)
                                Date of Decision:November 04, 2009



Bachan Kaur and another                           ...........Appellants

                               Versus


Navtej Singh and others                            ..........Respondents



Coram:       Hon'ble Mrs. Justice Sabina

Present: Mr.M.S.Khaira, Senior Advocate with
         Mr.Dharminder Singh, Advocate for the appellants
         Mr.Kanwaljit Singh, Senior Advocate with
         Mr.Harvinder Singh,Advocate for the respondents
                           **

Sabina, J.

Plaintiff-Gian Singh filed a suit for declaration and

permanent injunction. The said suit of the plaintiff was dismissed by the

Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment

and decree dated 9.10.2006. Aggrieved by the same, plaintiff filed an

appeal and the same was dismissed by the Additional District Judge

Fatehgarh Sahib vide judgment and decree dated 19.2.2008. Hence, the

present appeal has been filed by the plaintiff.

The case of the parties, as noticed by the learned Additional

District Judge in paras 4 to 6 of its judgment reads as under:-

“4.The brief facts of the suit out of which the present appeal has

been directed are that the plaintiff Gian Singh originally filed a

suit for declaration to the effect that he is owner in possession of

the suit land mentioned at letter X in the head note of the plaint

and judgment and decree dated 2.3.1982 passed by Shri Bhagwan
RSA No.2634 of 2008 (O&M) 2

Singh,Sub Judge Ist Class, Bassi Pathana in suit No.78 of

10.2.1982 in respect of the suit land mentioned at letter X in the

head note of the plaint is illegal, null and void, result of fraud and

misrepresentation and does not confer any title on defendant no.1

and is not binding on the plaintiff and sale deed dated 21.5.1999

executed by defendant no.1 in favour of defendants No.2 and 3 in

respect of the land detailed at letter Y in the head note of the

plaint and sale deed dated 22.6.2000 executed by defendant No.1

in favour of defendant No.4 in respect of land detailed at letter Z

in the head note of the plaint, are illegal, null and void and are

liable to be set aside and for permanent injunction restraining the

defendants from alienating the suit property and also for

possession of the land recorded at letter X in the head note of the

plaint. It has been averred that plaintiff is peace loving, illiterate,

retired and is aged person and is owner in possession of the suit

land as detailed at letter X in the head note of the plaint.

Defendant No.1 is real nephew of the plaintiff. The plaintiff has

good faith in him. Previously plaintiff was serving in Military

and he retired therefrom. The Government was providing

facilities to Ex-Military personnel. Defendant no.1 asked the

plaintiff to accompany him to Bassi Pathana to execute some

documents for getting electric motor connection on priority basis

and also requested the plaintiff to execute surety for him for

obtaining loan from the bank in the year 1982 and while believing

representation of defendant No.1 to be true, plaintiff accompanied

him to Bassi Pathana. Defendant No.1 obtained thumb
RSA No.2634 of 2008 (O&M) 3

impressions of the plaintiff on several papers on the pretext that

he is executing documents for the purpose of getting electric

connection on priority basis as well as for furnishing surety bond

for defendant No.1 for obtaining loan from the bank. The plaintiff

never thumb marked any paper with intention to transfer suit land

in favour of defendant no.1 nor he suffered any decree for

transferring the suit land in favour of defendant No.1. Plaintiff

was never summoned in Civil suit No.78 dated 10.2.1982 by any

process server of the said court. Plaintiff came to know about

decree dated 2.3.1982 passed in the said suit only a month back

when defendant No.1 started proclaiming himself to be the owner

of the suit land mentioned at letter X in the head note of the plaint

and thereafter the plaintiff obtained copies of the revenue record

and came to know about the impugned decree which was got

passed by defendant No.1 by playing fraud upon the plaintiff and

he has also come to know that defendant No.1 has sold 2-1/2

biswas of abadi land belonging to the plaintiff to defendants No. 2

and 3 vide sale deed dated 21.5.1999 and 5 biswas of abadi land

to defendant no.4 vide sale deed dated 20.6.2000 alleging himself

to be owner of the said abadi. Sale deed dated 21.5.1999 and

22.6.2000 executed by defendant No.1 in favour of defendants

No. 2 and 3 as well as defendant No.4 with respect to land

mentioned at letters Y and Z in the head note of the plaint are

illegal, null and void and not binding upon the plaintiff. The

plaintiff asked the defendant No.1 to admit his claim over the suit

land detailed at letter X in the head note of the plaint and hence
RSA No.2634 of 2008 (O&M) 4

this suit.

5. Notice of this suit was given to the defendants. Defendants

appeared and filed written statements. Defendant No.1 in his

written statement took preliminary objections that this suit is not

maintainable and the plaintiff has no cause of action and locus

standi to file the present suit. The suit is time barred. The

plaintiff has not come to the court with clean hands as he

concealed the true and material facts from the court. The suit is

bad for non-joinder of necessary parties as other co-sharers have

not been impleaded. The suit is barred under Section 11 of CPC.

It has been further averred that plaintiff has no son and answering

defendant used to serve the plaintiff and his wife and also

managing and cultivating affairs of the suit land from the very

beginning and then a dispute arose between the parties to the suit

with respect to the suit land which resulted into an oral family

settlement and arrangement among them in the presence of

relatives and friends including Inder Singh and Charanjit Singh

Fauji and in the said settlement, the defendant no.1 was declared

the owner of the suit land and the plaintiff had relinquished all his

rights, title and interest in the suit land in favour of the defendant

No.1 and to keep the peace and harmony among them the said

settlement was bonafide for the welfare of the family and since

then he is owner in possession of the suit and has prayed that the

judgment and decree dated 2.3.1982 is legal and valid one and is

binding upon the plaintiff as also the sale deed dated 21.5.1999

and 22.6.2000 are legal and valid and has prayed that suit be
RSA No.2634 of 2008 (O&M) 5

dismissed.

6. Defendants No. 2 and 3 in their written statement apart from

taking the same preliminary objections as were taken up by

defendant No.1 further pleaded that ; they have purchased the suit

property after verifying the records and after due inquiry from the

revenue officials and as such they are protected under Section 41

of Transfer of Property Act being bona fide purchasers. To the

same fact is the written statement filed by defendant No.4 and has

prayed that suit be dismissed with costs.

On the pleadings of the parties, the following issues were

framed by the trial Court:-

“1.Whether the plaintiffs are owners in possession of the suit

land?OPP

2. Whether decree dated 2.3.1982 passed in civil suit No.78 of

10.2.1982 titled as Navtej Singh vs. Gian Singh is illegal, null and

void?OPP

3.Whether sale deed dated 21.5.1999 executed by defendant No.1

in favour of defendants No. 2 and 3 is null and void?OPD

4.Whether sale deed dated 26.6.2000 executed by defendant No.1

in favour of defendant No.4 is null and void?OPD

5.Whether the suit is not maintainable?OPP

6.Whether plaintiff has no cause of action to file the suit?OPD

7.Whether plaintiff has no locus standi to file the suit?OPD

8.Whether suit is within limitation?OPP

9.Whether suit is bad for non-joinder of necessary parties?OPD

10.Whether suit is bad for want of provisions of Section 11
RSA No.2634 of 2008 (O&M) 6

CPC?OPD

11.Whether this court has jurisdiction to try the suit?OPP

12.Relief.”

After hearing the learned counsel for the parties, I am of the

opinion that the present appeal deserves to be dismissed.

Gian Singh, plaintiff filed the suit challenging the decree

dated 2.3.1982 suffered by him in favour of defendant No.1. Plaintiff could

only challenge the decree on the ground of fraud. However, the plaintiff

failed to establish the said fact. The decree was passed in the year

1982,whereas, the plaintiff filed the suit in the year 2000 challenging the

same. Mutation No.1148 dated 10.3.1983 (Exhibit P6) was sanctioned in

favour of defendant No.1 on the basis of the decree dated 2.3.1982. The

mutation was sanctioned in the presence of plaintiff-Gian Singh, and, hence,

it cannot be said that the plaintiff had no knowledge about the passing of the

decree. In these circumstances, the suit of the plaintiff was time barred.

The consent decree was suffered by Gian Singh in favour of his nephew.

Both the Courts below, after appreciating the evidence led by the parties on

record, have given a finding of fact that the plaintiff had failed to establish

that the decree in question was a result of fraud and misrepresentation. The

said finding of fact cannot be interfered by this Court.

No substantial question of law arises in this regular second

appeal which would warrant interference by this Court. Accordingly, this

appeal is dismissed.

( Sabina )
Judge
November 04, 2009
arya