Regular Second Appeal No. 21 of 2006 1
In the High Court of Punjab and Haryana, at Chandigarh.
Regular Second Appeal No. 21 of 2006
Date of Decision: 16.10.2008
Kidara
...Appellant
Versus
Rajwanti
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Arvind Singh, Advocate
for the appellant.
Kanwaljit Singh Ahluwalia, J.
This regular second appeal was preferred by Kidra son of
Risala. He has been unsuccessful in the two Courts below.
Case of the appellant is that he was in possession of 1/3rd
share of the suit land, particulars of which have been given in the plaint.
By filing a suit he wanted that judgment and decree passed in Civil Suit
No. 37 of 10.1.1996 passed on 17.2.1986 be set aside. It has been
further stated that the mutation sanctioned on the basis of decree be
also set aside as the same had been obtained by way of fraud. It was
further stated in the suit that in the year 1986, respondent had brought
appellant-plaintiff to Rohtak for medical check up, as he was required to
thumb mark some papers as guarantor to the tractor loan case. It has
been further stated that he came to know in December 1985 that the
defendant had misused those papers and on misrepresentation a
decree had been passed against the plaintiff. It was further pleaded that
Regular Second Appeal No. 21 of 2006 2
he being an illiterate and old person could not comprehend outcome of
the litigation. He prayed that the decree and subsequent mutation be
set aside being illegal, null and void.
Notice of the suit was issued. The Defendant appeared. She
took a preliminary objection that the suit is not maintainable and the
same is time barred. It was further stated that by his own act and
conduct, the plaintiff is estopped from filing the present suit and no
cause of action has arisen and he has no locus standi. On merits, it was
stated that the judgment and decree dated 17.6.1986 was passed in
favour of the defendant in accordance with law regarding 1/3rd share of
the land measuring 500 kanals 9 marlas and not 50 kanals 9 marlas. It
was further stated that the appellant-plaintiff himself suffered a decree in
favour of the defendant. He had engaged a counsel, filed a written
statement in which averments made in the plaint were admitted and
made a statement in the Court according to his own free will and
consent without any coercion.
After the pleadings of the parties had concluded, following
issues have been framed by learned trial Court:-
1. Whether the Civil Court decree dated 17.2.1986 is
illegal, null and void? OPP
2. Whether the plaintiff is owner in possession of the
suit property? OPD
3. Whether the suit is not maintainable in the present
form?
4. Whether the suit is barred by limitation? OPD
5. Whether the plaintiff is estopped from filing the
Regular Second Appeal No. 21 of 2006 3present suit by his own act and conduct? OPD
6. Relief.
The appellant-plaintiff led evidence and examined one
Devender Kumar, Clerk, DRK, Rohtak, as PW.1. Plaintiff himself
appeared as PW.1 and also examined Satbir son of Diwan and another
Satbir son of Ram Chander as PW.3 and PW.4, respectively.
Thereafter, the evidence was closed.
The defendant herself examined as DW.1. One Ram Kishan
was examined as DW.2 and documents Ex.D1 to Ex.D12 were
tendered.
The two Courts below have taken into consideration the fact
that the defendant is none else but the grand daughter in relation to the
appellant. It further returned a finding that since the appellant had
himself appeared in the Court and had deposed, therefore, his plea that
the the earlier decree was result of fraud cannot be upheld. The two
Courts below further came to conclusion that consent decree is as good
as a decree obtained after contest. The plea that inadvertently decree
instead of 1/6th share was passed regarding 1/3rd share was also
declined. The two Courts below have also came to conclusion that since
the decree had been passed on 17.2.1986 in the earlier suit, the present
suit was filed on 24.1.1997. Thus, there was a delay of more than 12
years. The two Courts below have returned a concurrent finding of fact
that there was no fraud and the plea raised subsequently is after
thought.
Mr. Arvind Singh, Advocate, appearing for the appellant has
stated that in view of fiduciary relationship, fraud is writ large. I am
Regular Second Appeal No. 21 of 2006 4
unable to accept this contention as I cannot re-appraise and re-
appreciate the evidence led before learned trial Court. Reliance has
been placed upon Chalti Devi and Others v. Rajinder Kumar and
Another 2003(3) Punjab Law Reporter 463 to contend that a person
who was in dominant relationship, onus is caused upon that person to
prove that there was no fraud. Reliance has been also placed upon
another judgment Madan Lal and Another v. Rajesh Kumar (Dead)
through LRs. 2005(3) Punjab Law Reporter 466.
The two Courts below after taking into consideration the
evidence of appellant-plaintiff and his two witnesses namely Satbir son
of Diwan PW.3 and Satbir son of Ram Chander PW.4 held that in this
case, the plea of fraud cannot be accepted.
No material has been placed before me to differ with the well
reasoned finding returned by the two Courts below. Learned counsel for
the appellant has urged that substantial question of law is that whether a
decree was obtained by way of fraud or not?. In the facts and
circumstances of the case, it cannot be said that there was a fraud on
the part of defendant-respondent, therefore, on facts, question raised
being substantial cannot be entertained.
Thus, the appellant cannot succeed and his Regular Second
Appeal cannot be accepted.
(Kanwaljit Singh Ahluwalia)
Judge
October 16, 2008
“DK”