R.S.A.No. 414 of 2007 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 414 of 2007 (O&M)
Date of decision: 15.7.2009
Barphy Devi @ Bharpo ......Appellant
Versus
Mahabir Singh and others .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vikram Singh, Advocate,
for the appellant.
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SABINA, J.
Plaintiff Barphy @ Barpho filed a suit for declaration to
the effect that she was owner in possession of the suit land to the
extent of 1/3rd share. The suit of the plaintiff was dismissed by the
Civil Judge (Sr.Divn.) Jind vide judgment and decree dated
7.12.2004. In appeal, the said judgment and decree were upheld by
the Additional District Judge, Jind vide judgment and decree dated
11.12.2006. Hence, the present appeal.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. The facts, in brief, of the case of the plaintiff
as set up in the plaint before the learned lower court are
that plaintiff is co-owner in possession of the land
comprised in Khewat No.104/96 Khatoni No. 143/139
R.S.A.No. 414 of 2007 (O&M) 2measuring 36 kanals to the extent of 1/3 rd share situated
in the revenue estate of Jind. Plaintiff’s husband Jaswant
Singh along with defendant No.1 Dharam Singh and Om
Parkash (since deceased) were real brothers and they
were living in separate houses for the last more than 30
years having separate kitchens and they never
constituted a joint Hindu family. The plaintiff is an old
lady of 75 years of age and is an illiterate and rustic
house hold lady and she does not know the norms of the
law and the court but defendant No.1 and his brother Om
Parkash (since deceased) were very clever persons and
they brought the plaintiff in the court for taking the land on
lease for two years but they by playing fraud and mis-
representation upon her got the civil court decree passed
in their favour though the plaintiff never appeared before
the court for giving the statement. Even the plaintiff never
remained with the defendants as family member, so there
is no question of acting as family settlement between
them and the defendants had not paid any money or any
property in lieu of her share out of the suit land at the time
impugned decree. The property involved in this case
under the decree was more than Rs.100/- so without
registration on the basis of civil Court decree the
defendants cannot be considered as owners and rather
R.S.A.No. 414 of 2007 (O&M) 3without registration it has not passed any title right in
favour of the defendants qua the suit land. So, decree
dated 4.11.1987 passed in favour of the defendants qua
the suit land is illegal, void and the same is not binding
upon the plaintiff. Plaintiff came to know about the decree
in the month of October, 1998 when she came to revenue
Patwari for taking fard jamabandi that suit land has
already been transferred in favour of the defendants and
mutation in this respect has already been sanctioned.
So, after taking copy of the decree and other documents
she filed the suit and challenged the decree dated
4.11.1987 for setting aside the same by declaring as
illegal and void.
3. The defendants have contested the suit by
filing their joint written statement. Their stand is that the
plaintiff is neither took place with the plaintiff in which
answering defendants got the suit land while they gave
property situated in Sampla to the plaintiff and plaintiff
herself appeared in the court by engaging a counsel and
on the statement of the plaintiff the decree was passed
and the defendants never played any fraud or mis-
representation upon her. Members of the joint Hindu
family the defendants were having preexisting rights in
the suit land. So, the decree under challenge does not
R.S.A.No. 414 of 2007 (O&M) 4require any registration and by virtue of the same the
defendants are to be considered owners in possession of
the suit land. Even the suit of the plaintiff is time barred
but the plaintiff has filed the suit after 11 years of the
passing of the decree. She is not in possession of the
suit land and she has filed the suit for declaration without
seeking the relief of possession, so her suit is not
maintainable and she is also estopped from filing the suit
by her own act and conduct. In this way the defendants
have controverted the stand of the plaintiff and also
requested for dismissal of the suit.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is owner in possession of
the suit land to the extent of 1/3rd share? OPP
2. Whether the judgment and decree dated
4.11.1987 passed in civil suit No.187 dated 7.3.1987
passed by the then ld. Senior Sub Judge, Jind in a suit
titled as Dharam Singh vs. Barfi Devi etc. and mutation
No.5440 dated 30.6.1997 are illegal, null and void and
does not effect the rights of the plaintiff and are liable to
be set aside? OPP
3. Whether the plaintiff is entitled for injunction
as prayed for? OPP
R.S.A.No. 414 of 2007 (O&M) 5
4. Whether the suit is time barred? OPD
5. Whether the suit is false and frivolous and
liable to be dismissed with special costs.? OPD
6. Whether the plaintiff is estopped by her own
act and conduct from filing the present suit? OPD
7. Relief. “
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal deserves to be dismissed.
Dharam Singh-defendant No.1, Om Parkash and Jaswant
Singh (all are since deceased) were real brothers. Plaintiff is widow
of deceased Jaswant Singh. Case of the plaintiff was that Dharam
Singh and Om Parkash by playing a fraud upon her had obtained her
thumb impressions on blank papers without telling her the true facts
and had got the suit land transferred in their favour fraudulently
through Civil Court decree dated 4.11.1987 passed in civil suit
No.187 of 7.3.1987 titled Dharam Singh etc. vs. Barfi @ Barfo etc.
Admittedly, Jaswant Singh, Dharam Singh and Om
Parkash had purchased land and out of which, plaintiff had 1/3rd
share. In order to prove that a fraud had been played upon her at the
time of suffering of the civil Court decree by her, plaintiff herself
appeared in the witness box as PW-1. Her case was that she
wanted to give her land on lease to the defendants for cultivation for
two years but her thumb impressions had been taken on some blank
papers and on the basis of the same, a decree had been got passed
R.S.A.No. 414 of 2007 (O&M) 6
by them against her. The defendants, on the other hand, placed on
record a copy of the plaint in the earlier suit Ex.D-1. As per the same
in a family settlement, property situated in Garhi Sampla was given to
the plaintiff while the suit land had come to their share. Plaintiff
appeared in the said suit along with her counsel. The certified copy
of the written statement filed by the plaintiff in the said suit was
placed on record as Ex.D-4, wherein the plaintiff had admitted the
claim of Dharam Singh and Om Parkash. Statement of the plaintiff
was recorded in the Court before passing of the impugned decree.
The only ground available to the plaintiff to challenge the decree was
that it was a result of fraud. Learned counsel for the appellant has
failed to point out anything from the record that the plaintiff had not
appeared before the Court in the earlier suit or had not filed any
written statement.
The case of the defendants in the earlier suit was that in a
family settlement the property situated in Garhi Sampla was given to
the plaintiff. It has been noticed by the learned Additional District
Judge that the plaintiff herself had stated that residential house and
some other property in Sampla were in her possession. Hence,
learned Additional District Judge has rightly observed that the
possibility of a family settlement having been effected between the
parties, in the facts and circumstances of the present case, could not
be ruled out. In the facts of the present case, the Courts below rightly
held that there was no question of any misrepresentation of fraud
R.S.A.No. 414 of 2007 (O&M) 7
having been committed by the defendants upon the plaintiff.
The plaintiff had challenged the impugned judgments and
decrees of the Courts below on the basis of fraud and
misrepresentation but had failed to establish the same.
The judgment and decree in question were passed on
4.11.1987, whereas, plaintiff filed the suit in the year 1998 after more
than eleven years.
In these circumstances, the Courts below had rightly
dismissed the suit of the plaintiff. I do not find any illegality or
irregularity in the impugned judgments which may give rise to any
substantial question of law for consideration of this Court in second
appeal.
Accordingly, the present appeal stands dismissed.
(SABINA)
JUDGE
July 15, 2009
anita