Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 3187 (PNJ)

Gurdev Kaur v. Jaspal Singh

2006-08-07

MAHESH GROVER

body2006
JUDGMENT MAHESH GROVER, J. 1. Briefly stated the facts of the case are that the plaintiff respondent, Jaspal Singh, filed a suit for declaration to the effect that decree dated 29.7.1995 suffered by Shamsher Singh, his father (arrayed as defendant no.1 in the suit) in favour of Gurdev Kaur (present appellant) in civil suit no.161 dated 15.6.1995 is illegal, null & void as he was the owner in possession of the suit property. It was averred by the plaintiff- respondent that his father-Shamsher Singh, who has since expired, had suffered a decree in his favour in the year 1982. Shamsher Singh had challenged that decree in civil suit no. RT-101 of 22.10.1991/12.8.1991, which was dismissed on 26.7.1993 and the decree in his favour was upheld. The appeal filed against judgment dated 26.7.1993 was also dismissed by Additional District Judge, Ropar. In those proceedings, Shamsher Singh had claimed the ownership regarding the suit property, but his plea was not accepted by the Courts and as a direct consequence thereof, the decree suffered in favour of the plaintiff- respondent on 21.4.1982 was held to be valid. Subsequently, Shamsher Singh, without disclosing the factum of the earlier decree and the litigation referred to above, suffered another collusive decree in favour of the appellant through suit no.161 of 15.6.1995. The appellant is the brother’s wife of Shamsher Singh. 2. The suit was contested by the appellant and the relationship of the plaintiff-respondent with Shamsher Singh was denied and it was pleaded that the decree suffered by Shamsher Singh in her favour was valid and the rest of the averments made in the suit were denied. 3. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether plaintiff is entitled to the declaration as prayed for?OPP 2. Whether the decree dated 29.7.1995 suffered by defendant no.1 in favour of defendant no.2 in Civil Suit No.161 of 15.6.1995 of the land is illegal, null and void?OPD 3. Whether the suit of the plaintiff is not maintainable?OPD 4. Whether present suit is liable to be stayed U/S 10 CPC?OPD 5. Relief. 4. In the evidence, the plaintiff-respondent examined himself as PW1 and closed his evidence. Thereafter, the appellant examined only Shamsher Singh as DW1 and no other evidence was led by her. 5. Whether the suit of the plaintiff is not maintainable?OPD 4. Whether present suit is liable to be stayed U/S 10 CPC?OPD 5. Relief. 4. In the evidence, the plaintiff-respondent examined himself as PW1 and closed his evidence. Thereafter, the appellant examined only Shamsher Singh as DW1 and no other evidence was led by her. 5. After perusing the evidence on record, the trial Court went onto decree the suit of the plaintiff-respondent and it was held that decree dated 29.7.1995 suffered by Shamsher Singh in favour of the appellant was illegal, null and void and the plaintiff-respondent was held to be owner in possession of the suit property. 6. Feeling aggrieved, the appellant filed an appeal and the lower Appellate Court dismissed the same and affirmed the judgment and decree passed by the trial Court. This has resulted in the Second Appeal having been filed by the appellant. 7. It was contended by Shri Vijay Lath, learned counsel for the appellant that both the Courts have gone wrong in returning a finding that the plaintiff-respondent was owner in possession of the suit property. The main thrust of his argument was that the plaintiff-respondent had filed the suit for declaration simplicitor and that no relief of possession had been asked for and, therefore, such a suit was not maintainable. In support of his contention, he relied upon the judgment of the Supreme Court reported as AIR 1993 S.C. 957 -Vinay Krishna Versus Keshav Chandra and another and a judgment of the Himachal Pradesh High Court reported as 1999(1) Civil Court Cases 698 -Sita Ram Versus Hari Krishan . 8. I have thoughtfully considered the contentions of the learned counsel and perused the record. In my opinion, the appeal deserves to be dismissed. 9. Shamsher Singh, who was arrayed as defendant no.1 in the suit, had suffered a decree in favour of the plaintiff-respondent in the year 1982. The said decree was challenged by him in the year 1991 after a lapse of nine years, and vide judgment dated 26.7.1993 (Exhibit P1), the plaintiffrespondent was held to be the owner in possession of the suit property. In the appeal against that judgment, the findings of the trial Court were affirmed by Additional District Judge, Ropar. The said decree was challenged by him in the year 1991 after a lapse of nine years, and vide judgment dated 26.7.1993 (Exhibit P1), the plaintiffrespondent was held to be the owner in possession of the suit property. In the appeal against that judgment, the findings of the trial Court were affirmed by Additional District Judge, Ropar. Therefore, when the subsequent decree was suffered by Shamsher Singh in favour of the appellant on 29.7.1994 (Exhibit P4), he was neither the owner of the suit property nor was he in possession thereof. The rights of the plaintiff respondent had been determined when the consent decree was passed in his favour in the year 1982 and acted upon subsequently and also upheld by the Civil Courts. The subsequent decree suffered by Shamsher Singh in favour of the appellant was clearly the result of suppression of material facts which had no effect on the rights of the plaintiff-respondent, which, in any case, had been determined prior to its coming into existence. The effects of decree dated 29.7.1995 could not be passed on to the plaintiff-respondent for three reasons, firstly, he was not even a party to the said decree and, therefore, it could not bind him; secondly, it was the result of a fraud and suppression of material facts; and thirdly, his rights had already been determined in the previous litigation where the consent decree passed in his favour was upheld and he was found to be the owner in possession of the suit property. 10. The contention of the learned counsel for the appellant that the suit for declaration simplicitor without any prayer for possession was not maintainable does not carry any weight in view of the background of the facts of the present case. The plaintiff-respondent has been held to be the owner in possession much prior to the coming into existence of the consent decree in favour of the appellant. Even the Courts below have held that the plaintiff-respondent was owner in possession of the suit property ever since the year 1982 when the decree was suffered in his favour. That being so, there was no need for the plaintiff- respondent to file a suit for possession as well. The subsequent decree suffered by Shamsher Singh in favour of the appellant could have no effect on the rights of the plaintiff-respondent. 11. That being so, there was no need for the plaintiff- respondent to file a suit for possession as well. The subsequent decree suffered by Shamsher Singh in favour of the appellant could have no effect on the rights of the plaintiff-respondent. 11. A feeble attempt was sought to be made by moving an application under Order 41 Rule 27 of the Code of Civil Procedure to say that the land in the decrees of 1982 and 1995 is different. A perusal of the record shows that the appellant had chosen not to lead any evidence except for the statement of Shamsher Singh-DW1. The suit itself has been contested ever since 2002 and it cannot be believed that the documents which are sought to be introduced by way of additional evidence were not within the knowledge of the appellant. Leading of additional evidence in Regular Second Appeal is not a matter of right. Of course, if the facts warrant and it is shown that the additional evidence is necessary for proper adjudication of the matter, the same can be allowed, but in the instant case, the most glaring aspect is that the subsequent decree in favour of the appellant was a result of fraud and suppression of material facts and is unsustainable in the eyes of law. 12. In view of the above, no case for adducing additional evidence has been made out by the appellant. 13. For the fore-going reasons, the appeal as well as the application for additional evidence are dismissed.