Regular Second Appeal No. 2104 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 2104 of 2008
Date of Decision: 12.5.2009
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Suresh
Appellant
VS.
Smt. Mariyan & Ors.
Respondents
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. Anil Malik, Advocate
for the appellant.
Mr. K.S. Dhaliwal, Advocate
for respondent No.1.
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ARVIND KUMAR, J.
The appellant was one of the defendants in the suit for
declaration and consequential relief of possession filed by the plaintiff-
respondent No.1. He is aggrieved with the concurrent findings returned by
the Courts below to the effect that the plaintiff is owner of 1/27 share of
land measuring 331 kanals 12 marlas and 5/72 share of land measuring 247
kanals 15 marlas and that the judgment and decree dated 6.5.1995 passed in
Civil Suit No.283 of 2.3.1995 titled as Satpal & Ors. Vs. Smt. Mariyan and
consequent mutation No. 4535 dated 30.9.1995 sanctioned on the basis
thereof, are based upon fraud and misrepresentation and that the plaintiff is
entitled to take over the possession from the defendants.
The facts of the case, in nutshell, are that the plaintiff Smt.
Mariyan got instituted a suit wherein she claimed that she is owner of the
suit land, to the extent mentioned above, and that the judgment and decree
dated 6.5.1995 passed in favour of defendants is based upon fraud and
obtained by impersonation. It was her case that she never appeared in the
Regular Second Appeal No. 2104 of 2008 2
aforesaid Court and suffered the admitting statement, leading to the decree
of the suit, rather the defendants, by producing some other lady in the Court,
got obtained the said decree in their favour in respect of the suit land. It was
further case of the plaintiff that the defendants have no pre-existing right in
the suit property. Thus, a prayer was made to set aside the impugned
judgment and consequent mutation entered in favour of the defendants and
that the defendants be directed to restore the possession of the suit land to
her.
On the other hand, the stand of the defendants No.2 to 4 who
contested the suit, was that the said statement, leading to the decreetal of the
suit was made by the plaintiff out of her own sweet will, pursuant to a
family settlement arrived at between the parties. The plea of fraud and
impersonation, as raised by the plaintiff, were denied and it was prayed that
the plaintiff is not entitled to claim possession of any part of the suit land
from them.
After contest, the suit was decreed in the manner indicated
above and the appeal preferred by the appellant was dismissed. Hence this
regular second appeal.
I have heard learned counsel for the parties and have gone
through the paper book carefully.
The main stress of the learned counsel for the appellant is as to
the maintainability of the suit filed by the plaintiff. Although no such plea
was taken while filing the written statement and obviously for that reason
no issue to that effect was framed, yet the argument of learned counsel for
the appellant is that as per Order 23 Rule 3-A there is a complete bar to file
separate suit to challenge the compromise decree and the court is prohibited
from entertaining such a suit and that the remedy of the party aggrieved may
be by way of an application before the same Court. In this context, reliance
has been placed on the judgment rendered by coordinating Single Bench of
this Court in the case of Smt. Shanti Devi (dead) represented by LR. Vs.
Gian Chand 2008(1) RCR (Civil) 658. However, this Court is of the
opinion that the appellant cannot derive any benefit from Smt. Shanti’s case
(supra). In the case of Ram Kishan & Ors. Vs. Smt. Sardari Devi & Ors.
2002(4) RCR (Civil) 837, similar argument was raised on behalf of the
appellants therein and the learned Single Judge, while relying upon the
Regular Second Appeal No. 2104 of 2008 3
answer of the Division Bench to the question of law formulated in this
regard, held as under:-
“11. The contention raised by the learned counsel for
the appellant cannot be said to be devoid of any merit,
but keeping in view the fact that a Division Bench of this
Court specifically, upon instructions, formulated a
question of law and answered the same in the following
terms:-
Q. What is the import of the words ‘not lawful’
in Rule 3-A of Order 23 of the code; do these
words have or have not the same connotation as
the words “shall not be deemed to be lawful” in
the Explanation to Rule 3-A of Order 23 of the
code or to be a little more specific, whether a
separate suit lies to set aside the decree on the
ground that the agreement or the compromise on
which it is based is void having been brought
about by mis-representation, undue influence or
fraud etc.?
Ans. The words “not lawful” occurring in Rule
3-A of Order 23 of the code have wider content
than similar words in the Explanation to Rule 3.
The Explanation to Rule 3 deals with agreements
or compromise which are not to be deemed to be
lawful if they are void or voidable under the
Indian Contract Act, 1872 but the agreement or
compromises which are not lawful as referred to
in Rule 3-A are more general in term and are not
engrafted by the limitations as insertted in the
Explanation appended to Rule3. If the agreement
or compromise is not the result of consensus of
mind of two person in regard to certain matters,
viz. when the consent of one of them to the terms is
Regular Second Appeal No. 2104 of 2008 4obtained by the other by some illegal means,
namely, by fraud, coercion or undue influence,
thre is in fact no compromise. Rule 3-A does not
bar the maintainability of the suit challenging the
compromise on these grounds. However, the Court
can in exercise of its inherent jurisdiction also
relieve the party alleging fraud, coercion or undue
influence of the agreement. Question No.1 is
answered accordingly.”
12. In view of the above law laid down by a Division
bench of this Court, which is binding on a Single Judge
of this Court, I would follow the law as laid down despite
the above contention. As the Division Bench has held
that a suit challenging a compromise decree on the
ground that it was obtained by misrepresentation and
fraud is maintainable, the argument of the appellants
that no suit was maintainable, cannot be sustained.”
In view of the aforesaid observations, this Court is of the firm
opinion that the suit filed by the plaintiff was very much maintainable.
Adverting to the merits of the case, both the Courts below
concurrently held that the judgment and decree dated 6.5.1995 and the
consequent mutation are illegal and void being based upon fraud. While
arriving to the said conclusion, both the Courts below took into
consideration the report of Finger Print Expert as also that of Director,
Finger Print Bureau Haryana, Madhuban, wherein, after comparison of
standard thumb impression of plaintiff with those appearing on her admitted
statement recorded in the Court on 21.4.1995 and application moved on
same date, it was opined to be of different persons and not matched with the
standard thumb impression of plaintiff. No doubt PW.3 Dr. Inderjit Singh,
Handing Writing Expert was examined by the plaintiff, but the specimen
thumb impressions were also got examined by the Court from Director,
Finger Print Bureau, Haryana, Madhuban at the instance of the defendants
and they never objected the said report. Not only this, it was found that on
Regular Second Appeal No. 2104 of 2008 5
filing the said suit, notice was issued to Smt Mariyan (defendant therein) for
2.6.1995, however, on 21.4.1995 the file was taken up on an application
allegedly moved by Mariyan and her admitted statement was recorded on
that date itself and thus, no notice of the suit could be issued to the
defendant therein. As said above, the thumb impression appearing on
application as well as statement dated 21.4.1995 were found not tallied with
standard thumb impression of Smt. Mariyan. The plaintiff is sister of father
of the appellant. The theory of family settlement between the parties was
also discarded by the Courts below by observing that since a Hindu woman
becomes absolute owner of the property possessed by her by virtue of
Section 14 of the Hindu Succession Act, 1956, therefore, no person can
have pre-existing right therein and once the defendants had no pre-existing
right in the property held by the plaintiff, there was no question of any legal
and valid family settlement between the parties. By observing that
limitation would not come in the way of setting aside a void order and also
when the suit is filed on the basis of title, it has been concluded that the suit
is well within limitation. Accordingly, it has been held that the defendants
have no right to retain the possession of the suit land on the basis of
judgment and decree, which was a nullity. Said findings are discernible
from para No.16 of the judgment rendered by the learned first appellate
Court, while affirming the findings returned by the learned trial Court.
In view of the above, there is nothing to deviate from what has
been concurrently held by the Courts below. It cannot be said that the
findings returned by the Courts below suffer from any illegality or
perversity or that the same are based on no evidence. No question of law,
much less substantial question of law arises for determination in this regular
second appeal, which is accordingly dismissed. No costs.
(ARVIND KUMAR)
JUDGE
May 12,2009
Jiten