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2006 DIGILAW 49 (PNJ)

Sadhu v. Krishna Devi

2006-01-06

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. This is defendants second appeal against the judgment and decree passed by both the Courts below decreeing the suit of the plaintiff. 2. The plaintiff Smt. Krishna Devi, who is the niece of the defendant, filed the suit for declaration challenging the Civil Court decree dated 16.8.1991 allegedly passed in favour of the defendant and to declare her the owner of 40 kanals 6 marlas of land being 1/3rd share in the land measuring 121 kanals 6 marlas and further directing the defendant to hand over the possession of the same to her. 3. The aforesaid Civil Court decree and the consequent sanction of mutation on the basis of the same, has been challenged on the ground that the R.S.A. No. 2765 of 2005 -2-plaintiff never appeared in the Court in the aforesaid decree; she never served as a defendant; she never filed a Vakalatnama or written statement in the Court; she never engaged any Advocate; and the aforesaid decree was obtained by the defendant by impersonating a lady and playing fraud on the Court. 4. Both the Courts below have set aside the said decree and declared the plaintiff as owner of the property in question and directed the defendant to hand over the possession of the same to the plaintiff while recording the finding of fact that the aforesaid decree was obtained by the defendant by impersonation and playing fraud on the Court; the plaintiff never suffered that decree; she never appeared and signed Vakalatnama and written statement. The said finding has been recorded on the basis of the evidence led by the plaintiff. In this case, the defendant has not led any evidence. Even he has not appeared himself as a witness. He only tendered a certified copy of another decree dated 25.5.1989 as Ex.D1. 5. Counsel for the defendant (appellant) though has not controverted the findings recorded by the Courts below on issue No. 1 regarding impersonation and other issues regarding limitation etc. Even he has not appeared himself as a witness. He only tendered a certified copy of another decree dated 25.5.1989 as Ex.D1. 5. Counsel for the defendant (appellant) though has not controverted the findings recorded by the Courts below on issue No. 1 regarding impersonation and other issues regarding limitation etc. but he has submitted that the plaintiff has not challenged the Civil Court decree dated 25.5.1989 (Ex.D1) vide which the mother of the plaintiff Smt. Krishna Devi suffered a collusive decree being natural guardian of the plaintiff in favour of the defendant vide which part of the suit land was transferred in his favour, therefore, qua that extent the suit of the plaintiff should not have been decreed by both the Courts below. 6. I have considered the aforesaid arguments of the learned Counsel for the appellant and do not find any force in the same. The alleged decree dated 25.5.1989 was admittedly suffered by the mother of the plaintiff Smt. Roshni Devi being natural guardian of the plaintiff. Except the certified copy of the decree dated 25.5.1989 (Ex.D1), no evidence has been placed on the record. The trial Court framed issued No. 6 in this regard, burden of which was placed on the defendant. The defendant did not lead any evidence or examine any witness and even did not place on record the copy of the plaint and the written statement filed on behalf of the plaintiff and has not established at all how the decree pertaining to the land of the minor was suffered in his favour. 7. At the appellate stage, the appellant moved an application for additional evidence for bringing on record the copy of the order dated 4.4.1987 passed by the District Judge, Jind vide which the mother of the plaintiff alleged to have been granted permission under Section 8(2) of the Hindu Minority and Guardianship Act to alienate the share of the plaintiff in favour of Sadhu Ram. The trial Court dismissed that application while observing that vide order dated 4.4.1987 the guardian took the permission of the Court for selling the land of the minor at the rate of Rs. The trial Court dismissed that application while observing that vide order dated 4.4.1987 the guardian took the permission of the Court for selling the land of the minor at the rate of Rs. 25,000/- per acre pursuant to an agreement to sell with one Sis Ram, but no sale deed was executed in favour of the said person and subsequently she suffered the collusive decree of the land of the minor in favour of the defendant which is totally contrary to the interests of the minor. Both the Courts below on issue No. 6 have held that the alleged decree dated 25.5.1989 (Ex.D1) is not binding on the plaintiff and decided that issue against the defendant. 8. I do not find any illegality or any perversity on the finding given by both the Courts below on issue No. 6. Both the Courts below have recorded a finding of fact. No substantial question of law is involved in this appeal. 9. Dismissed.