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2009 DIGILAW 1308 (PNJ)

Bhag Chand v. Maya Devi

2009-08-03

RAJIVE BHALLA

body2009
JUDGMENT Rajive Bhalla, J. - The appellants challenge the judgments and decrees dated 23.12.2006 and 19.12.2007, passed by Civil Judge (Junior Division), Hansi and the Additional District Judge, Hissar, decreeing the suit filed by the respondent and dismissing their appeal. 2. Maya Devi, the plaintiff-respondent filed a suit for possession of land measuring 72 kanals situated in village Sisar, Tehsil Hansi on the plea that the collusive decree dated 29.07.1975, allegedly suffered by her in Civil Suit No. 328-C of 1975, is a nullity as it is vitiated by fraud. She denied any family settlement, alleged her impersonation by the appellants and pleaded that as she was a minor aged 12 years on the date of the collusive decree she- could not make a statement or suffer a decree. 3-4. The appellants contested the suit and raised various preliminary objections. On merits, they denied the allegations of fraud and impersonation , denied the fact that Maya Devi was 12 years old on the date of the decree and asserted that Maya Devi had suffered a collusive decree vide Judgment and decree dated 29.07.1975 pursuant to a family settlement and, therefore, the suit should be dismissed. 5. On the basis of the pleadings, the trial court framed the following issues : "1. Whether the plaintiff is entitled to the relief of declaration as well as possession and injunction with respect to the disputed land on the grounds so mentioned in the plaint ? OPP 2. Whether the plaintiff has no locus standi and cause of action to file the present suit ? OPD 3. Whether the suit is barred by limitation ? OPP 4. Whether the suit is barred by principle of res-judicata ? OPD 5. Whether the suit is not maintainable in its present ? OPD 6. Relief." After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit and set aside the judgment and decree dated 29.07.1975 by holding that it was a nullity as on the date, of the judgment and decree, Maya Devi was a minor. It was also held that the impugned judgment and decree was obtained by perpetuating a fraud. 6. Aggrieved by the aforementioned judgment, the appellants filed an appeal. The Additional District Judge, Hissar, affirmed the findings recorded by the trial court and dismissed the appeal. 7. It was also held that the impugned judgment and decree was obtained by perpetuating a fraud. 6. Aggrieved by the aforementioned judgment, the appellants filed an appeal. The Additional District Judge, Hissar, affirmed the findings recorded by the trial court and dismissed the appeal. 7. Counsel for the appellants submits that the appellants filed a suit that they were owners of the suit land, pursuant to a family settlement. Maya Devi filed a written statement Ex.D2 admitting their claim. She also made a statement Ex.D3 accepting the averments in the suit. As a result a decree dated 29.07.1975 was passed in favour of the appellants. The suit filed by Maya Devi alleging that this decree was obtained by fraud should have been dismissed as the respondent has failed to adduce any evidence, to establish her plea that this decree was obtained by perpetuating fraud. The finding recorded by the courts below that the decree dated 29.07.1975 is a nullity as Maya Devi was 12 years old on 29.07.1975 is based upon misreading of the evidence, particularly the birth certificate Ex.P1. The birth certificate relates to and records the birth of a girl named Surajmukhi to one Ratna son of Bhala. The respondent has failed to adduce any evidence, other than her self-serving statement, that she was known as Surajmukhi or that she is the daughter of Ratna. Maya Devi has failed to produce any other relative or any of the other children of Ratna from his other wife to establish that she was known as Surajmukhi during her childhood. The courts below however, proceeded to rely upon Maya Devis uncorroborated statement to hold that she was known as Surajmukhi during her childhood. It is further urged that in the plaint, Maya Devi alleges that she was 12 years old on 29.07.1975 whereas if the entries in the birth certificate are accepted as true, she would be 16 years old on 29.07.1975. It is, therefore, argued that as the birth certificate belies the averments, in the plaint as to age, the courts below should have rejected it. It is further argued that the birth certificate Ex.P1 records the birth of a child to Ratna son of Bhala. The respondent has failed to adduce any evidence that she is the daughter of Ratna. In the original plaint, the respondent has described herself as Maya Devi daughter of Shiv Lal. It is further argued that the birth certificate Ex.P1 records the birth of a child to Ratna son of Bhala. The respondent has failed to adduce any evidence that she is the daughter of Ratna. In the original plaint, the respondent has described herself as Maya Devi daughter of Shiv Lal. However, by way of an amendment it was altered to Maya Devi daughter of Badamo widow of Shiv Lal. The respondent has failed to produce any evidence to establish that Ratna was her father. In the absence of any evidence to support her claim that she is the daughter of Badamo from the lions of Ratna, or that she was also known as Surajmukhi, the courts below could not have placed reliance upon the birth certificate Ex.P1. 8. Another argument pressed into service, by counsel for the appellants is that as per the report Ex.D3, submitted by a handwriting expert, the thumb impressions appearing on the statement recorded before the court match the admitted thumb impression of Maya Devi. It is, therefore, argued that as the appellants have proved that the thumb impressions were affixed by Maya Devi, it stands proved that she appeared before the Court, filed a written statement conceding the claim of the appellants, admitted a family settlement and therefore could not plead fraud and impersonation. The findings returned by the courts below that Maya Devi did not appear before the Court and was impersonated are therefore, factually and legally unsustainable. It is further submitted that DW5 Ajit Singh Malik, Advocate, who represented Maya Devi in the earlier suit has deposed that he was instructed by Maya Devi to file the written statement Ex.D2 admitting the claim raised by the appellants. He also identified Maya Devi in Court. The courts below have ignored this evidence and therefore, committed an error of law. It is further argued that Maya Devi and the appellants belong to the same family. 9. Counsel for the respondent, on the other hand, submits that the courts below have recorded concurrent findings of fact that the judgment and decree dated 29.07.1975 were obtained by impersonation and fraud. It has also been held that on 29.07.1975 Maya Devi was a minor. As these concurrent findings of fact do not suffer from any error, no substantial question of law arises for consideration. It has also been held that on 29.07.1975 Maya Devi was a minor. As these concurrent findings of fact do not suffer from any error, no substantial question of law arises for consideration. It is argued that the certificate Ex.P1 clearly establishes that Maya Devi was a minor on 29.07.1975. Even if it is accepted though, not admitted, that she appeared before the court and made a statement giving up her rights in her property, her statement is a nullity as it is the statement of a minor. It is further submitted that apart from the document Ex.P1, the respondent has produced an order Ex.P9 passed by the Judicial Magistrate, Hansi, committing Ratna, the respondents father and appellant No. 1 for trial for the murder of Maya Devis mother Badamo. It is clearly recorded in the order Ex.P9 that Smt. Maya is the daughter of Badamo. It is further pointed out that the deposition of DW1 clearly establishes that Maya Devi was a minor on 29.07.1975. As regards the argument that the certificate Ex.P1 contains the name Surajmukhi, it is submitted that Maya Devis deposition that she was known as Surajmukhi during her childhood was rightly accepted by the courts below as it remains unrebutted. It is, argued that the opinion the handwriting expert, though not binding but even if accepted as correct would make no difference to the final outcome of the case as both the courts below have returned concurrent findings of fact that Maya Devi was a minor on the date of the collusive decree. It is further submitted that the respondent has proved that Smt. Badamo married Ratna after the demise of her husband Shiv Lal and Maya Devi was born from their union. These facts have been admitted by the appellants and their witnesses. Ex.P8 dated 06.10.2004 is the statement of Ram Chander, appellant No. 2, recorded in a civil suit titled as Maya Devi v. Ram Chandler etc. In his cross-examination Ram Chander admits that Shiv Lal died prior to his birth and Maya Devi was born when he was 20/22 years old. Furthermore the commitment order Ex.P9 dated 11.01.1971 clearly records Maya Devi as the daughter of Badamo. DW1 Surat Singh admits that Badamo, mother of Maya Devi was married to Shiv Lal who died issueless and after his demise she married Ratna. Furthermore the commitment order Ex.P9 dated 11.01.1971 clearly records Maya Devi as the daughter of Badamo. DW1 Surat Singh admits that Badamo, mother of Maya Devi was married to Shiv Lal who died issueless and after his demise she married Ratna. It is submitted that in view of the overwhelming evidence produced by the respondent, the courts below rightly decreed the suit and dismissed the appeal. 10. Another argument pressed into service is that appellant No. 1 and Ratna father of Maya Devi were tried for the murder of her mother Badamo. It is, therefore, incomprehensible that Maya Devi would enter into a family settlement with her mothers killers. It is prayed that as the concurrent findings of fact recorded by the courts below. do not raise any question of law much less a substantial question law, the appeal be dismissed. 11. I have heard counsel for the parties, perused the record and considered the arguments addressed by counsel for the parties. Counsel for the appellant has framed the following questions of law : "(a) Whether impugned Judgment of the learned lower appellate court is perverse being contrary to the facts stated in the record? (b) Whether the findings of learned lower appellate court on issue No. 1 are contrary to the record and based upon conjectures and a perverse approach to the entire case ? (c) Whether any fraud can be held established in the present case in the fact of the statement of finger print expert DW6 and his report Ex.DW6/A showing that the plaintiff-respondent herself had appeared in the previous suit and suffered the decree Ex.P3 by affixing her thumb impression on the admission written statement and on the statement made on oath in the court on identification by her counsel ? (d) Whether the Learned lower appellate court has failed to appreciate admissible relevant evidence furnished by the statements of two respectable Advocates appearing as DW4 and DW5 without referring to them in a proper perspective ? (e) Whether the judgment of the learned lower appellate court is vitiated on account of its failure to appreciate that in the original plaint the plaintiff prescribed herself as daughter of Shiv Lal and later on after amendment also she prescribed herself as daughter of Badamo widow of Shiv Lal, which means the same thing ? (e) Whether the judgment of the learned lower appellate court is vitiated on account of its failure to appreciate that in the original plaint the plaintiff prescribed herself as daughter of Shiv Lal and later on after amendment also she prescribed herself as daughter of Badamo widow of Shiv Lal, which means the same thing ? (f) Whether the learned Lower Appellate Court was entitled to allow the plaintiff-respondent to build a new case which was contrary to her pleading in the plaint ? In the plaint para 3 (vi) the plaintiff claims her age to be 12 years in 1975. In the face of definite pleading she was not entitled to produce in evidence Ex.P-1 as her birth certificate because it showed the age of the girl of P-1 to be 16 years in 1975. (g) Whether the self serving statement of the plaintiff to the effect that her name in childhood was Suraj Mukhi is believable in the absence of producing Ratna in her support and not producing any witness from the village Siser stating that the childhood name of the plaintiff respondent was Suraj Mukhi ? (h) Whether the suit of the plaintiff is barred by limitation when it challenges a decree of 29.07.1975 in the present suit filed for the first time on 14.5.197 after a lapse of more than 22 years ? " 12. A brief narrative of the facts would be appropriate. Maya Devi, respondent, filed a suit praying for possession of land measuring 72 kanals by alleging that the collusive judgment and decree Ex.P2 and Ex.P3 dated 29.07.1975 passed in civil suit No. 328-C of 1975 and the consequent mutation No. 1366 dated 28.01.1976, sanctioned thereon are null and void. Maya Devi pleaded that she had never entered into any family settlement or appeared in any court to file a written statement or suffered a statement accepting a family settlement. It was also pleaded that her mother Badamo was married to one Shiv Lal who died issueless. After his demise, Badamo inherited the estate of Shiv Lal and thereafter performed a karewa marriage with one Ratna son of Bhala. Maya Devi was born of this union and was known as Surajmukhi during her childhood. After the murder of Badamo, by appellant No. 1 and Ratna, the suit land was inherited by Maya Devi. After his demise, Badamo inherited the estate of Shiv Lal and thereafter performed a karewa marriage with one Ratna son of Bhala. Maya Devi was born of this union and was known as Surajmukhi during her childhood. After the murder of Badamo, by appellant No. 1 and Ratna, the suit land was inherited by Maya Devi. Ratna and Bhag Chand were brought to trial but were acquitted. It was further alleged that on the date of passing of collusive decree as she was a minor and, therefore, legally incapable of entering into a family settlement or filing a written statement, suffering a collusive decree. 13. Both the trial and the first appellate court have recorded concurrent findings of fact that the judgment and decree dated 29.07.1975 was obtained by perpetuating a fraud. In addition, concurrent findings of fact have been recorded by the courts below that on 29.07.1975 Maya Devi was a minor and therefore, legally incapable of entering into any family settlement much less filing a written statement or suffering a statement conceding the appellants claim. 14. The first two questions of law though general in nature, relate to the findings that the collusive judgment and the decree dated 29.07.1975 were obtained by fraud would be considered along with the other questions. As noticed in the preceding paragraphs, the courts below are concurrent in their opinion that : (1) On the date of the passing of the judgment and decree dated 29.07.1975, Maya Devi was a minor. (2) Maya Devi is the daughter of Badamo from the loins of Ratna. (3) Badamo married Ratna after the demise of her first husband. (4) The birth certificate Ex.P1. establishes that Maya Devi was born to Ratna. (5) Maya Devi was known as Surajmukhi during her childhood. (6) Maya Devi did not appear before a court,did not file a written statement, did not suffer a statement acknowledging the family settlement and, therefore, the judgment and decree dated 29.07.1995 is vitiated on account of fraud. 15. The argument that Maya Devi has failed to prove fraud or impersonation as the finger print expert has deposed that her admitted thumb impressions match the thumb impressions appearing on the written statement filed and the statement recorded before the passing of the judgment and decree dated 29.7.1975, even if accepted as true, is of no avail. 15. The argument that Maya Devi has failed to prove fraud or impersonation as the finger print expert has deposed that her admitted thumb impressions match the thumb impressions appearing on the written statement filed and the statement recorded before the passing of the judgment and decree dated 29.7.1975, even if accepted as true, is of no avail. The judgment and decree dated 29.07.1975 stands vitiated as Maya Devi was a minor and, therefore, legally incapable of agreeing to a family settlement or suffering a collusive decree giving up her proprietory rights without requisite permission from a Guardian Judge. No such permission has been pleaded or established. 16. It would also be necessary to mention that the story of Maya Devi suffering a collusive decree in favour of the appellants does not appeal to reason. It is not denied that Badamo, Maya Devis mother, was murdered. Bhag Singh, appellant No. 1 and Ratna her husband were tried for this murder but were acquitted. Maya Devi could not be expected to give up her entire property to a person who was accused of the murder of her mother. The argument that the birth certificate Ex.P1 records the birth of a girl named Surajmukhi to Ratna was considered by the Courts below and rejected. I do not find any error of law as would necessitate interference with these findings. Even otherwise this argument would have assumed significance if the appellants had chosen to rebut Maya Devis oral deposition that during her childhood she was known as Surajmukhi. I, therefore, find no reason to differ with the opinion recorded by the Courts below. 17. The other argument relates to the plea that Maya Devi has failed to establish that she is the daughter of Ratna. Both the courts below have returned concurrent findings that Maya Devis mother Badamo performed a Karewa marriage with Ratna, after the demise of her first husband Shiv Lal. The fact that Maya Devi was born to Badamo from her marriage with Ratna is corroborated by sufficient evidence. Both the courts below have returned concurrent findings that Maya Devis mother Badamo performed a Karewa marriage with Ratna, after the demise of her first husband Shiv Lal. The fact that Maya Devi was born to Badamo from her marriage with Ratna is corroborated by sufficient evidence. Ex.P8 is a statement, dated 06.10.2004, made by Ram Chander, appellant No. 2, in an earlier suit titled as "Maya Devi v. Ram Chander", wherein Ram Chander has deposed that Shiv Lal died prior to his birth and Maya Devi was born when Ram Chander was 20/22 years old, thus clearly admitting that Maya Devi was born after the demise of Shiv Lal. Ex. P9 is a order dated 11.01.1971, passed by the Judicial Magistrate 1st Class, Hissar, committing Bhag Chand appellant No. 1 and Ratna to the Sessions Court for trial of the murder of Badamo. In these proceedings, Maya Devi is clearly referred to as the daughter of Badamo. DW1 Surat Singh, admitted that after the demise of her husband Shiv Lal, Badamo married Ratna. He also admitted that Shiv Lal had died issueless. This witness, therefore, admits by inference that Maya Devi was the daughter of Ratna and Badamo. To similar effect is the statement of one Azad Singh, Ex.P7, recorded in a prior inter-parties dispute. The documents Ex.P8 and Ex.P9 when read with the oral evidence and the admissions made by the defendants clearly establish that Maya Devi was born out of the wedlock of Ratna and Badamo. The courts below, therefore, rightly held that Maya Devi was the daughter of Badamo from her Karewa marriage with Ratna and that on the date of passing of the decree dated 29.07.1975, she was a minor. 18. The submission made by counsel for the appellants that if Ex.P1 is to be accepted, as correct Maya Devi would be 16 years old and not 12 years as asserted by her in the plaint, even if it is accepted true would not make any difference to the final outcome of the appeal as Maya Devi would still be a minor. In view of what has been stated hereinabove, as the findings relating to the date of birth and parentage of Maya Devi are pure finding of fact that do not suffer from any error of law much less a substantial error as would raise a substantial question of law, the concurrent findings of fact recorded by the courts below are affirmed. 19. The last question of law relates to a plea that the suit was barred by limitation as it was filed 22 years after the judgment and decree dated 29.07.1975 merits outright rejection. Apart from the fact that Maya Devi was a minor and denies knowledge of the decree, fraud vitiates every act. As fraud has been established, the suit was rightly held to have been filed within limitation. In view of what has been stated hereinabove, as the questions framed by the counsel for the appellants do not raise any substantial question of law, the concurrent findings of fact recorded by the courts below do not call for any interference and, are therefore, affirmed. The appeal is dismissed with no order as to costs. Appeal dismissed.