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2004 DIGILAW 318 (PNJ)

Chander v. Sewa Singh

2004-03-17

JAGDISH SINGH KHEHAR

body2004
JUDGMENT J.S. Khehar, J. - Fakiriya had two sons and four daughters. Sewa Singh and Devi Singh were his sons, whereas, Chander, Savitri, Ram Pati and Krishna were his daughters. After his death, he was survived by his widow Bhaga. 2. Sewa Singh filed a suit claiming certain ownership rights in the property of his father Fakiriya. The aforesaid suit was decreed on 1.2.1975. Sewa Singh was declared owner of the property of Fakiriya, which would have gone by succession to his daughters, on the basis of the judgment and decree dated 1.2.1975, a mutation in the revenue record was entered on 13.3.1975, depicting his ownership in terms of the judgment and decree dated 1.2.1975. 3. Chander and Savitri, daughters of Fakiriya, filed a suit against Sewa Singh (son of Fakiriya) and Bhaga (widow of Fakiriya) with a prayer that the judgment and decree dated 1.2.1975 be set aside as the same had been obtained by fraud, and that, they be declared as owners of 2/7th share of the property of Fakiriya to which they were entitled to by way of succession. They also sought consequential setting aside of the mutation entry dated 13.3.1975. So as to depict that the judgment and decree dated 1.2.1975 was obtained by fraud, it was alleged that the plaintiffs i.e. Chander and Savitri never engaged any counsel in the suit filed by Sewa Singh, wherein they had been arrayed as defendants No. 2 and 3. It was further contended that they never filed any written statement in response thereto admitting or acknowledging the claim of defendant No. 1. They also contended that they were never summoned by the Court consequent upon the filing of the suit by Sewa Singh, which was decreed on 1.2.1975. On the basis of the aforesaid factual position, it was sought to be concluded that Sewa Singh had obtained the judgment and decree dated 1.2.1975 by fraud. 4. In the suit filed by the plaintiffs, the following issues were framed : 1. Whether the impugned judgment and decree dated 1.2.1975 with respect to the land in suit were obtained by defendant No. 1 by fraud, misrepresentation and collusion and the same are not binding on the plaintiff, if so, to what effect ? OP. 2. Whether the parties are governed by custom in matters of alienation, if so, to what effect and what that custom is ? OP. 3. OP. 2. Whether the parties are governed by custom in matters of alienation, if so, to what effect and what that custom is ? OP. 3. Whether the plaint is adequately valued and stamped for purposes of court fee and jurisdiction ? OP. 4. Whether the impugned judgment and decree were passed as a matter of family settlement, as alleged in written statement, if so, to what effect ? OD. 5. Whether the plaint is not properly verified, if so, to what effect ? OD. 6. Whether the plaintiffs have no locus standi to bring the present suit ? OD. 7. Whether the defendants are entitled to special costs under Section 35-A CPC ? OD. 8. Relief. 4-A. Two additional issues were later on framed on 6.1.1978 :- 7-A. Whether the plaintiffs are in possession of the suit property, if not, its effect ? OPP. 7-B. Whether the plaintiffs should have sued for cancellation of the decree, if so, its effect ? OPD. 5. Issue No. 1 is the only material issue and arguments have been addressed before this Court only on the aforesaid issue. So far as Issue No. 1 is concerned, the trial Court recorded a finding thereon to the effect that the judgement and decree dated 1.2.1975 (on the basis of which the suit land came to be mutated in favour of Sewa Singh) had not been obtained by fraud, misrepresentation or coercion. In the aforesaid view of the matter, the trial Court eventually concluded that the plaintiffs Chander and Savitri were bound by the judgment dated 1.2.1975 and since the mutation entry dated 13.3.1975 was based on the aforesaid judgment dated 1.2.1975, the trial Court held the same to be valid and justified. 6. Aggrieved with the order of the trial Court dated 4.11.1978, Chander and Savitri preferred an appeal in order to challenge the same. The District Judge, Hisar by his order dated 23.10.1979 dismissed the appeal. Aggrieved with the orders passed by the trial Court dated 4.11.1978 and the lower Appellate Court dated 23.10.1979, Chander and Savitri have filed the instant Regular Second Appeal. 7. The District Judge, Hisar by his order dated 23.10.1979 dismissed the appeal. Aggrieved with the orders passed by the trial Court dated 4.11.1978 and the lower Appellate Court dated 23.10.1979, Chander and Savitri have filed the instant Regular Second Appeal. 7. The trial Court as well as the lower Appellate Court while arriving at their conclusions noticed the statements of the witnesses produced by the plaintiffs and recorded a finding that the same were either at the behest of the interested witnesses or were in the nature of hear-say, and as such, were not reliable. Reference in this behalf may be made to the statement of Savitri recorded as PW1 and statement of Chander recorded as PW4. PW1 and PW4 reiterated their non-participation in the suit filed by Sewa Singh. They also produced as PW3 Devi Singh. Devi Singh is the brother of the plaintiffs Chander and Savitri as also the brother of defendant No. 1 Sewa Singh and son of defendant No. 2 Bhaga. His testimony is limited, to the assertions made to him, by Savitri and Chander, to the effect, that Sewa Singh had obtained the judgment and decree dated 1.2.1975 by way of fraud and misrepresentation. The statement of PW3 Devi Singh has, therefore, been described as hear-say by the lower Appellate Court. 8. So as to controvert the evidence produced by the appellants-plaintiffs, the respondents-defendants examined Sewa Singh as DW1. His statement was naturally in consonance with the stance taken by him in the written statement. The material statements, so as to tilt the balance one way or the other, were those of Ram Pati DW6, Het Ram DW4 and Dhup Singh, Advocate DW5. Ram Pati DW6 is the sister of appellants-plaintiffs Chander and Savitri. Her interest is identical to the interest of appellants-plaintiffs. Despite that, in her statement, she affirmed that her mother Bhaga, her sisters Chander and Savitri (i.e. the appellants-plaintiffs) and she herself had gone to Hisar to engage Dhup Singh, Advocate, consequent upon the filing of the suit by Sewa Singh. She also asserted that her mother, her two sisters and she herself thumb- marked the Power of Attorney so as to engage Dhup Singh, Advocate. She also stated that a joint written statement was filed on their behalf admitting the claim of Sewa Singh, and that the same was submitted in the Court of Sub- Judge, First Class, Hisar. She also asserted that her mother, her two sisters and she herself thumb- marked the Power of Attorney so as to engage Dhup Singh, Advocate. She also stated that a joint written statement was filed on their behalf admitting the claim of Sewa Singh, and that the same was submitted in the Court of Sub- Judge, First Class, Hisar. The said written statement was also stated to have been thumb marked by her mother Bhaga, by her two sisters (Chander and Savitri i.e. the appellants-plaintiffs) and by herself. There is another interesting feature of the statement of Ram Pati DW6, namely, that her uncle Het Ram (who appeared as DW4, and is brother of Fakiriya i.e. the father of the plaintiffs, defendant No. 1, and Ram Pati; and husband of defendant No. 2) identified all of them i.e. her mother Bhaga, her two sisters Chander and Savitri, and herself before Dhup Singh, Advocate. Dhup Singh, Advocate was produced as DW5. He asserted that he had been engaged by Bhaga, Chander, Savitri and Ram Pati and he had filed written statement on their behalf after obtaining Power of Attorney from them. Dhup Singh, Advocate DW5 has also reiterated that those, who had engaged him, were identified by an aged person. DW4 Het Ram, is the aged person referred to in the said statement. As per Het Ram DW4, Bhaga, Chander, Savitri and Ram Pati had engaged Dhup Singh, Advocate by affixing thumb impressions on the Power of Attorney. He also stated that they had affixed thumb impressions on the written statement prepared by Dhup Singh, Advocate, on their behalf. In the background of the aforesaid overwhelming evidence, the trial Court as well as the lower Appellate Court concurrently arrived at the conclusion that the appellants-plaintiffs had voluntarily engaged counsel and filed written-statement conceding the claim made by Sewa Singh in the suit filed by him whereupon, the aforesaid suit was decreed on 1.2.1975. As such, the Courts below arrived at the conclusion that the judgment and decree dated 1.2.1975 had not been procured by Sewa Singh by fraud, misrepresentation or coercion. 9. As such, the Courts below arrived at the conclusion that the judgment and decree dated 1.2.1975 had not been procured by Sewa Singh by fraud, misrepresentation or coercion. 9. Learned counsel for the appellants-plaintiffs in her effort to controvert the conclusions drawn by the Courts below, has vehemently contended that an application was filed by the appellants-plaintiffs for leading secondary evidence, so as to produce, a finger print expert in order to raise an objection to the effect that the thumb impressions on the Power of Attorney executed in favour of Dhup Singh, Advocate, as also on the joint written statement filed by them, were not their own. It is, however, pointed out that the trial Court had dismissed the said application, which substantially prejudiced the claim of the appellants-plaintiffs. The aforesaid contention of the learned counsel for the appellants-plaintiffs is clearly misconceived in view of the fact that in the suit filed by the appellants-plaintiffs, it was not their case that the thumb impressions affixed on the Power of Attorney and the written-statement filed by them, were not their own. The case set up in the instant suit out of which this appeal has arisen was, that their thumb impressions have been fraudulently obtained by respondent-defendant No. 1 Sewa Singh. In view of the above, it is too late in the day now for the appellants-plaintiffs to assert that the thumb impressions were not their own either on the Power of Attorney executed in favour of Dhup Singh, Advocate, or in the written-statement jointly filed in response to the suit preferred by Sewa Singh (which was decreed on 1.2.1975). In view of the deliberations recorded above, I find no merit in the contention of the learned counsel for the appellants-plaintiffs. Accordingly, the concurrent findings recorded by the trial Court as well as the lower Appellate Court are hereby affirmed. Dismissed. Appeal dismissed.