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2007 DIGILAW 818 (PNJ)

Ram Kumar v. Rameshwar Lal

2007-04-16

HEMANT GUPTA

body2007
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for declaration challenging the consent decree dated 20.1.1984 was dismissed. 2. Hira Lal suffered a consent decree in favour of the defendants, sons of his cousin Kundan Lal. The said Hira Lal was issuelesss. It is the case of the plaintiff that Kundan Lal had 10 sons. It was agreed by the plaintiff-Hira Lal to suffer decree in favour of all the 10 sons of Kundan Lal, whereas the decree was suffered in favour of only two sons of Kundan Lal to the exclusion of the remaining 8 sons. The said suit filed by Hira Lal has been dismissed by both the Courts below, holding that the decree suffered by Hira Lal on 20.1.1984 is not an act of fraud or misrepresentation. The suit challenging the said decree was filed on 4.3.1993. Though the learned trial Court dismissed the suit on the ground that it is beyond the period of limitation but the learned first Appellate Court has reversed the said finding. 3. Both the Courts have recorded a finding that the decree is not a result of fraud or misrepresentation on the basis of the statement of DW6 Rajender Prasad, Advocate, engaged by Hira Lal to appear in the suit in which Hira Lal has suffered a decree. He has deposed that the statement was read over to the plaintiff herein and after understanding and admitting the same to be correct, the plaintiff has affixed his thumb impressions. The witness has identified the plaintiff as well. 4. Learned Counsel for the plaintiff-appellants has vehemently argued that the material aspect of evidence has not been taken into consideration by the Courts below and, therefore, the judgment and decree passed suffers from patent illegality. It was pointed out that the fee paid to an Advocate appearing on behalf of Hira Lal has been paid by the present defendants. The said aspect would show that the act of sufferance of the decree was not a voluntary act on the part of Hira Lal. It was pointed out that the fee paid to an Advocate appearing on behalf of Hira Lal has been paid by the present defendants. The said aspect would show that the act of sufferance of the decree was not a voluntary act on the part of Hira Lal. It is also pointed out that DW3 Manmohan Lal has deposed that Hira Lal was in possession of the suit property at the time of the passing of the decree which contradicts the finding recorded that there was a prior family settlement, which was recognised by the consent decree. It is also pointed out that no details of family settlement as to the date and the particulars have been disclosed either in the previous suit or in the present suit, therefore, the decree passed on the basis of family settlement is not sustainable. 5. It is also argued that the consent decree was in favour of strangers and therefore, the said defendants have no pre-existing rights in the estate of Hira Lal and, therefore, the said decree requires compulsory registration. Reliance is placed upon Chalti Devi and Ors. V/s. Rajinder Kumar and Anr. 2004 (1) Cur. L.J. 54. 6. However, I do not find any substance in the argument raised by the learned Counsel for the appellant. The present plaintiff has admitted the claim of the defendants in the previous suit. There is nothing unusual if the Advocate engaged on behalf of the defendants has been paid fee by the plaintiff in that suit as the parties were consenting to the decree. As a matter of fact, the plaintiff has sought to dispute the proceedings recorded in the Court admitting the claim of the plaintiff. The proceedings of the Court carry the presumption of correctness and the same cannot be permitted to be disputed, more so after long lapse of time. The plaintiff cannot wriggle out of the same by merely stating that he had agreed to suffer a consent decree in favour of all the sons of Kundan Lal, whereas the decree has been passed in favour of only two sons of Kundan Lal. As a matter of fact, the plaintiff had even denied that he engaged any Advocate. The plaintiff cannot wriggle out of the same by merely stating that he had agreed to suffer a consent decree in favour of all the sons of Kundan Lal, whereas the decree has been passed in favour of only two sons of Kundan Lal. As a matter of fact, the plaintiff had even denied that he engaged any Advocate. From the statement of DW 4 Rajender Prasad, it is apparent that it was Hira Lal, who engaged him and that the statement made by Hira Lal was read over to him and he has put his thumb impressions after admitting the same to be correct. 7. The argument that Hira Lal was owner in possession of the suit land on the date of decree and continued to cultivate the suit land is not sufficient to hold that the decree was an act of fraud or misrepresentation. The beneficiaries of the decree are not strangers. They are his nephews. A finding has been recorded that the deceased used to live with the defendants and the last rites were also performed by the defendants. Therefore, it cannot be said that cultivation of land by Hira Lal after the decree in any way creates doubts over the decree passed. 8. The arguments that the particulars of the family settlement were not disclosed either in the previous suit or in the present proceedings, is again not sustainable. The defendants are not strangers. As found by the Courts below, they are nephews of the deceased-plaintiff. Being the members of the family, the defendants have a pre-existing rights in the estate of Hira Lal, particularly when Hira Lal had no issue. The reliance of the appellant on Chalti Devis case (supra) is not tenable in as much as in the said case, the daughters were excluded, while suffering a consent decree in favour of the other relatives. In the instant case, the plaintiff had died admittedly issueless and, therefore, the sons of Kundan Lal are the nearest legal heirs of the deceased and thus, the consent decree could very well be suffered by Hira Lal in favour of two sons of Kundan Lal. 9. Concurrent findings of fact recorded by the Courts below are sought to be disputed by way of re-appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. 9. Concurrent findings of fact recorded by the Courts below are sought to be disputed by way of re-appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. No substantial question of law arises for consideration in the present appeal. Hence, the present appeal is dismissed.