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2011 DIGILAW 560 (PNJ)

Sudhan v. Beli Ram

2011-02-11

L.N.MITTAL

body2011
JUDGMENT L.N. MITTAL, J. (ORAL) CM No.4793-C of 2010 This is application for impleading legal representatives of Smt. Veera plaintiff No.2 and Masudi-defendant No.2. It is alleged that plaintiff No.2 left behind five persons mentioned in paragraph 2 of the application, whereas, defendant No.2 Masudi left behind three sons mentioned in paragraph 3 of the application as their respective legal heirs. The application is accompanied by affidavit. Accordingly the application is allowed subject to all just exceptions and persons mentioned in paragraphs 2 and 3 of the application are ordered to be impleaded as legal representatives of plaintiff No.2 and defendant No.2 respectively for the purpose of this appeal. CM No.4794 -C of 2010 For reasons mentioned in the application, which is accompanied by affidavit, delay of 31 days in refiling the appeal is condoned. CM No.4795-C of 2010 For reasons mentioned in the application, which is accompanied by affidavit, delay of 11 days in filing the appeal is condoned. Main Case: Defendant No.1-Sudhan having failed in both the courts below has filed the instant second appeal. 2. The dispute relates to land of Ram Kishan. Plaintiff No.1 Beli Ram is brother of Ram Kishan whereas plaintiff No.2 Veera and defendant No.2 Masudi were sister and brother respectively of Ram Kishan. It is undisputed that Ram Kishan has died issueless and his wife had predeceased him. Defendant No.1 is the son of defendant No.2 Masudi. 3. Plaintiffs alleged that decree dated 03.05.1982 obtained by defendant No.1 herein against Ram Kishan in Civil Suit No.385 of 1982 is based on fraud and misrepresentation and is also unregistered. The plaintiffs sought declaration to this effect and that plaintiffs and defendant No.2 are owners in possession of the suit property to the extent of 1/3rd share each. 4. Defendant No.1 contested the suit and denied the plaint allegations. Defendant No.1 alleged that consent decree dated 03.05.1982 is legal and valid and was voluntarily suffered by Ram Kishan who considered defendant No.1 to be like his own son. Defendant No.1 had been serving Ram Kishan. Various other pleas were also raised. 5. Learned Additional Senior Sub-Judge, Hisar vide judgment and decree dated 16.12.1991 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, Hissar vide judgment and decree dated 28.07.2009. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. 6. Various other pleas were also raised. 5. Learned Additional Senior Sub-Judge, Hisar vide judgment and decree dated 16.12.1991 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, Hissar vide judgment and decree dated 28.07.2009. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. 6. I have heard learned counsel for the appellant and perused the case file. 7. Learned counsel for the appellant vehemently contended that consent decree dated 03.05.1982 has been held to be based on fraud merely on the ground that Ram Kishan had thumb marked the written statement and the statement made in the court in previous suit in which the said decree was passed although otherwise Ram Kishan used to affix signatures, but this cannot be ground to set aside the consent decree. 8. I have carefully considered the aforesaid contention but find no merit therein. In addition to the aforesaid circumstance, there are other circumstances also as cumulative effect whereof the decree dated 03.05.1982 has been held to be based on fraud. Plaintiffs have led sufficient evidence to depict that Ram Kishan always used to affix signatures whereas written statement filed in the previous suit and statement made in the court in that suit in which the consent decree was passed, purports to bear his thumb impressions. Plaintiffs had served notice on the defendant by way of interrogatory, seeking information regarding any document bearing thumb impression of Ram Kishan. Defendant No.1-appellant categorically stated in response thereto that there was no other document bearing thumb impression of Ram Kishan, except the documents in the file of Civil Suit No.385, in which the consent decree was passed. It is thus apparent that there was no occasion for Ram Kishan to affix thumb impressions on the written statement and the statement made in the previous suit while invariably he used to affix signatures and never affixed thumb impression. In fact practically there is no evidence on record except self-serving statement of defendant No.1 that the said thumb impressions in the previous suit had been affixed by Ram Kishan. Self-serving statement of defendant No.1 in this regard is not sufficient, particularly when Ram Kishan never affixed thumb impressions but always used to affix signatures. Defendant No.1 examined another witness DW-1 Baru Ram, Clerk of the counsel who represented Ram Kishan in the previous suit. Self-serving statement of defendant No.1 in this regard is not sufficient, particularly when Ram Kishan never affixed thumb impressions but always used to affix signatures. Defendant No.1 examined another witness DW-1 Baru Ram, Clerk of the counsel who represented Ram Kishan in the previous suit. However, Baru Ram has admitted that he did not personally know Ram Kishan who suffered the consent decree dated 03.05.1982 by filing written statement and by making statement in the court in the previous suit. It is thus apparent that alleged thumb impressions of Ram Kishan in the previous suit resulting in passing of the impugned consent decree are not proved to be his thumb impressions. Therefore, the fact that Ram Kishan always affixed signatures but in the previous suit he allegedly affixed thumb impressions assumes great significant. However, if the said thumb impressions had been proved to be of Ram Kishan, then this circumstance would have been of no significance. 9. In the aforesaid context, it is highly significant to notice that defendant No.1 kept concealed aforesaid consent decree dated 03.05.1982 for long period of almost five years during which Ram Kishan was alive after allegedly suffering the said consent decree. Defendant No.1 did not get entered mutation on the basis of the said decree. On the contrary, Ram Kishan died on 01.02.1987 and immediately thereafter, defendant No.1 got entered mutation on 10.02.1987 on the basis of the consent decree. This conduct of defendant No.1 clearly exposes the hollowness of his claim and demonstrates that Ram Kishan had not suffered the impugned consent decree and for this reason, mutation on the basis of decree was not got entered during the lifetime of Ram Kishan, obviously for the fear that Ram Kishan would have challenged the same. 10. Learned counsel for the appellant tried to canvass that being old person, Ram Kishan affixed thumb impressions on the written statement and the statement made in the Court in the previous suit. However, this explanation is also belied because long thereafter even in the year 1986, Ram Kishan had been affixing his signatures as proved on record. 11. In addition to the aforesaid, Courts below have noticed many other circumstances also. Both the courts below have came to concurrent finding against defendant No.1-appellant and in favour of the plaintiffs. However, this explanation is also belied because long thereafter even in the year 1986, Ram Kishan had been affixing his signatures as proved on record. 11. In addition to the aforesaid, Courts below have noticed many other circumstances also. Both the courts below have came to concurrent finding against defendant No.1-appellant and in favour of the plaintiffs. The said finding is based on proper appreciation of the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal so as to call for interference in second appeal. The said finding of fact does not give rise to any question of lay much less substantial question of law for determination in the instant second appeal. The appeal being devoid of merit is dismissed in limine. Appeal Dismissed.