JUDGMENT
R.L. Anand, J.
1. We are dealing with the case of one Jhutha Ram. Some facts can be notice in the following manner:-
Jhutha Ram and Devi Sahai were the sons of Khema. Jhutha Ram was issueless. Devi Sahai had three sons by the names of Krishan Chand alias Kishan Lal, Shiv Ram and Laxmi Chand. Laxmi Chand had two sons by the name of Bhani Sahai and Ramesh Chand.
Jhutha Ram suffered one consent decree dated 1.5.1982 bequeathing his property in favour of Kishan Chand alias Kishan Lal. Later on Kishan Chand suffered another consent decree dated 1.3.1984 and transferred 2/3rd share which he acquired from Jhutha Ram through consent decree dated 1.5.1982 in favour of Shiv Ram to the extent of 1/2 share and Bhani Sahai and Ramesh Chand to the extent of 1/2 share jointly. Later on Jhutha Ram filed the present suit for declaration to the effect that the consent decree dated 1.5.1982 allegedly suffered by him in favour of Kishan Chand is null and void on two counts – that the said decree has not been registered and in these circumstances no right, title or interest vested in Kishan Chand, as a result of which Kishan Chand could not transfer the title to Shiv Ram Bhani Sahai and Ramesh Chand. It may be mentioned here that Kishan Chand is defendant No. 1, Shiv Ram is defendant No. 2, Bhani Sahai is defendant No. 3 and Ramesh Chand is defendant No. 4. The suit was contested only by Shiv Ram Kishan Chand, in whose favour Jhutha Ram suffered the consent decree on 1.5.1982 admitted the allegations of Jhutha Ram that the decree was the result of fraud. The second ground of attack of Jhutha Ram to the decree dated 1.5.1982 is that a fraud was played upon him by Kishan Chand and as a result of that the decree dated 1.5.1982 is liable to be set aside and ignored.
Shiv Ram, defendant No. 2 contested the suit mainly on the ground that there was no fraud. Rather the present suit filed by Jhutha Ram is collusive along with Kishan Chand. Second defence of Shiv Ram is that the suit of Jhutha Ram seeking declaration that the decree dated 1.5.1982 is null and void is not legally maintainable and moreover, the present suit, which was instituted in the year 1988 is hopelessly barred by limitation.
2. The trial Court on the above controversies framed the following issues:-
1. Whether decree dated 1 5.1982 passed in Civil Suit No. 118 of 1982 titled as Kishan Lal v. Jhutha is illegal, null and void and not binding on the rights of the plaintiff as alleged in plaint? OPP
2. If issue No. 1 is proved whether the decree dated 1.3.1984 titled as Shiv Ram v. Kishan Lal is liable to be set aside as alleged in the plaint? OPP
3. Whether suit is within time? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiff has no locus-standi to file the suit? OPD
6. Whether defendant No. 2 is entitled for special cost? OPD
7. Relief.
3. The parties led oral and documentary evidence in support of their respective cases and finally the suit of the plaintiff Jhutha Ram was dismissed by the trail Court. Then he filed the first appeal. During the pendency of the first appeal, Jhutha Ram died and his appeal was pursued by Parveen Kumar, who is the adopted son of Jhutha Ram. It may also be mentioned here that the name of the natural father of Parveen Kumar is Kishan Chand. It may further be mentioned her that Jhutha Ram adopted Parveen Kumar during the pendency of the suit.
4. The first Appellate Court also dismissed the appeal of Parveen Kumar, the adopted son of Jhutta Ram. Hence this Regular Section Appeal.
5. I have heard Mr. S.K. Mittal, Advocate, on behalf of the appellant and Mr. R.K. Aggarwal, Advocate, on behalf of the respondents.
6. The learned counsel for the appellant has given a serious challenge to the judgments and decrees of the Courts below mainly on three grounds – that Kishan Chand in the present suit admits that he obtained the decree as a result of fraud and in these circumstances the trail Court and the first Appellate Court ought to have decreed the suit of the plaintiff straightaway. The second contention of the learned counsel for the appellant is that the decree dated 1.5.1982 required registration because by that decree the right, title and interest had gone to Kishan Chand and since the decree is not registered one, therefore, Kishan Chand on account of the decree dated 1.5.1982 has not become the owner of the property, as a result of which he could not further suffer the decree dated 1.3.1984. The third contention raised by the learned counsel for the appellants that the suit of the plaintiff was within limitation because plaintiff Jhutha Ram came to know about the consent decree dated 1.5.1982 subsequently and from the date of the knowledge the suit is within limitation.
7. On the contrary, the learned counsel appearing on behalf of the respondents has endorsed the reason given by the Courts below in dismissing the suit.
8. After considering the rival contentions of the parties, I am of the considered opinion that Jhutha Ram could not challenge the consent decree dated 1.5.1982 on the ground of non-registration being a party to that decree itself. He could challenge that decree only on the ground of fraud or collusion or on the ground that the Civil Court had no inherent jurisdiction to pass the decree. In this regard I can take support from Section 44 of the Evidence Act. So far as the alleged consent of Kishan Chand in favour of Jhutha Ram is concerned, it is also meaningless for the reason that the present suit appears to be collusive between Jhutha Ram and Kishan Chand. Kishan Chand had suffered a consent decree dated 1.3.1984. The counsel appearing on behalf of the respondents has also invited, my attention to the statement of Jhutha Ram where he has admitted that Kishan Chand was spending the litigation expenses of the present suit instituted by Jhutha Ram. Jhutha Ram was a party to the decree dated 1.5.1982 and, therefore, he could only institute the suit within three years for setting aside the said decree on the ground that the decree has been obtained as a result of fraud or collusion or it was passed by a Court of incompetent jurisdiction. So far as the fraud aspect is concerned, it is not proved on the record. It appears that with the passage of time some differences have arisen between Kishan Chand and Shiv Ram. It is evident further that the son of Kishan Chand had gone in the lap of Jhutha Ram and, therefore, in order to deprive the right of Shiv Ram under the consent decree dated 1.3.1984 the present suit has been instituted by Jhutha Ram at the instance of Kishan Chand.
9. The learned counsel for the appellant in order to convince me relied upon a judgment Bankey Bihari v. Surya Narain alias Munnoo, 1999(3) R.C.R. (Civil) 469 and submitted that document which required registration but has not been registered such document can be challenged even by the parties to that document irrespective of the fact that the parties are being benefited by that document. The counsel wanted to convey that irrespective of the fact that Jhutha Ram was the party to the decree dated 1.5.1982, he can still give challenge to that decree on the ground that it was not registered and he further stated that there was no estoppel against the law vis-a-vis Jhutha Ram. I have gone through the citation and in my opinion the judgment is not helpful to Jhutha Ram or his L.R.
In this view of the matter, I do not see any merit in the present appeal. The same is hereby dismissed with the observation that whatever right, title or interest has been acquired by Shiv Ram under the decree dated 1.3.1984 shall remain with him. No order as to costs.