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Himachal Pradesh High Court · body

2022 DIGILAW 682 (HP)

Raj Kumar v. Samphal, S/o. Sh. Tirhu

2022-11-04

JYOTSNA REWAL DUA

body2022
JUDGMENT : 1. Suit filed by respondents No. 2 to 4 for declaration with consequential relief of permanent prohibitory injunction was dismissed by the learned trial Court. The appeal filed by respondents No. 2 to 4 was allowed and their suit was decreed by the learned first appellate Court. This appeal under Section 100 of the Code of Civil Procedure (in short CPC) is by the legal representatives of original defendant No. 1 Milkhi Ram. 2. Facts 2(i) Contesting parties to the suit are related to each other and have common ancestor. For better understanding of facts, following pedigree table of parties has been drawn :- Bangali Tirhu Jagdish Chand Milkhi Ram Suhali Devi Samphal Piar Chand Karam Chand Ravi Chand Raj Kumar Rajinder Kumar Parveen Kumar Satya Devi Plaintiffs Contesting Defendants 2(ii) Plaint 2(ii)(a) Plaintiffs (present respondents No. 2 to 4) in their plaint filed on 10.10.1995 pleaded that suit land measuring 15 kanal 6 marlas (15K-6M) was entered in the jamabandi for the year 1992-93 in the ownership and possession of Samphal (defendant No.2) and other co-sharers. Defendant No. 2 had not been heard for last more than 40 years, hence presumed dead. Plaintiffs’ father Jagdish Chand Chand and original defendant No. 1 (Milkhi Ram) were real brothers, sons of Bangali. Bangali was in possession of Samphal’s share in the suit land (7K-13M) as non-occupancy tenant on payment of rent. After Bangali’s death, the occupancy rights were inherited by his sons Jagdish Chand and Milkhi Ram in equal shares. They both became owners of tenanted land by operation of law on coming into force of the H.P. Tenancy and Land Reforms Act 1972. Jagdish Chand died on 16.12.1990. After his death, suit land to the extent of Samphal’s share was being cultivated by plaintiffs (legal representatives of Jagdish Chand) and defendant No. 1 Milkhi Ram in equal shares. The revenue entries reflecting name of Samphal as owner-in-possession of the suit land were wrong and illegal. 2(ii)(b) The plaintiffs further pleaded that their real paternal uncle Milkhi Ram (defendant No. 1 ) in order to grab Samphal’s share in the suit property, filed Civil Suit No. 188 of 1991, titled Milkhi Ram Vs. Safail @ Samphal. Plaintiffs were not impleaded in that suit. An ex-parte decree was obtained by defendant No. 1 in that suit qua Samphal’s share in the suit land in a fraudulent manner. Safail @ Samphal. Plaintiffs were not impleaded in that suit. An ex-parte decree was obtained by defendant No. 1 in that suit qua Samphal’s share in the suit land in a fraudulent manner. In this decree, Milkhi Ram was declared owner in possession of 7 K-13 M i.e. Samphal’s share in the suit land. The existing revenue entries showing Samphal as owner in possession were declared illegal. Plaintiffs asserted that the said judgment and decree dated 01.06.1992 was a nullity and not binding on the plaintiffs. 2(ii)(c) Decree was prayed for by the plaintiffs that they alongwith their uncle/defendant No.1 Milkhi Ram were joint owners in possession in equal shares over Samphal’s share in the suit land measuring 7 kanal 13 marlas. Judgment and decree dated 01.06.1992 passed in Civil Suit No. 188 of 1991 titled Milkhi Ram Vs. Samphal be declared as null and void. Consequential relief of permanent prohibitory injunction was also prayed for. Written Statement 2(iii) Defendant No. 2 Samphal who as per the plaint had not been heard for last forty years and thus presumed dead was eventually served through publication. He remained ex-parte. Milkhi Ram, defendant No. 1 in his written statement took preliminary objection of suit being barred by limitation and also it being not maintainable. On merits, the defence was that defendant No. 1 was the only non-occupancy tenant over the suit land. His nephews (plaintiffs) had no right over the land. Plaintiffs’ predecessor/Jagdish Chand had himself given an undertaking in the family partition that he will have no concern over the suit land. Defendant No. 1 also denied that his father Bangali ever cultivated the suit land as non-occupancy tenant. Gist of defendant No. 1’s defence was that neither the plaintiffs nor their father Jagdish Chand nor their grandfather Bangali ever cultivated the suit land much less in the capacity of non-occupancy tenants. It was only Milkhi Ram, s/o Bangali who cultivated Samphal’s share in the suit land as non-occupancy tenant. Therefore, judgment and decree dated 01.06.1992 was passed in accordance with law correctly declaring Milkhi Ram as owner in possession of Samphal’s share in the suit land i.e. to the extent of 7 K-13 M. 2(iv) Evidence, both oral and documentary, was led by the parties. Therefore, judgment and decree dated 01.06.1992 was passed in accordance with law correctly declaring Milkhi Ram as owner in possession of Samphal’s share in the suit land i.e. to the extent of 7 K-13 M. 2(iv) Evidence, both oral and documentary, was led by the parties. 2(v) Learned trial Court vide its judgment and decree dated 03.03.2007 held that the previous judgment and decree dated 01.06.1992 obtained by defendant No. 1 in Civil Suit No. 188 of 1991 could only be challenged by way of appeal. Plaintiffs were required to prove that in passing the judgment and decree dated 01.06.1992, the Court was misled by any act of defendant No. 1. The plaintiffs failed to lead such evidence. The plaintiffs failed to give details of the fraud allegedly played upon the Court by defendant No. 1, which resulted in passing judgment and decree dated 01.06.1992. The learned trial Court also examined plaintiffs’ case on merits and held that plaintiffs could not prove that they were non-occupancy tenants over the suit land. The suit was, therefore, dismissed. Learned first appellate Court re-appreciated the pleadings, the evidence, the submissions and held that the judgment and decree dated 01.06.1992 obtained by defendant No. 1 in Civil Suit No. 188 of 1991 was result of fraud. The judgment affected plaintiffs’ rights and was not binding on them as they were not impleaded in the said civil suit. It was held that plaintiffs and defendant No. 1 were equally placed over the suit land. Share in question in the suit land was owned by Samphal but was under cultivation of Bangali the common predecessor of plaintiffs and defendant No. 1. After Bangali’s death, the suit land was cultivated by his sons (i.e. Jagdish Chand-father of the plaintiffs) and Milkhi Ram (defendant No. 1) as non-occupancy tenants. Both the succession lines i.e. of Jagdish Chand and that of Milkhi Ram were entitled to equal shares of Samphal’s share over the suit land. The suit was accordingly decreed as prayed for. Aggrieved, the legal representatives of defendant No. 1 Milkhi Ram have preferred the instant Regular Second Appeal. 3. Substantial Questions of Law The appeal was admitted on 30.03.2009 on the following substantial questions of law :- “1. Whether the remedy of the respondents/plaintiffs for challenging the validity of the judgment and decree, Ex. Aggrieved, the legal representatives of defendant No. 1 Milkhi Ram have preferred the instant Regular Second Appeal. 3. Substantial Questions of Law The appeal was admitted on 30.03.2009 on the following substantial questions of law :- “1. Whether the remedy of the respondents/plaintiffs for challenging the validity of the judgment and decree, Ex. P-2, dated 01.06.1992 was by way of filing an appeal and the present suit was not maintainable ? 2. Whether without raising the plea of fraud and proving the same, Ex. P-2, the judgment passed by the learned Sub Judge Court No. (2), Hamirpur dated 01.06.1992 could not be declared unlawful ? 3. Whether Ex. D-1 memorandum of partition of family settlement is wrongly excluded from consideration by the learned District Judge on the grounds that the same was not registered document, because according to him it created rights over the suit land in favour of the appellants/defendants and thus the jurisdiction has not been exercised property ?” I have heard learned counsel for the parties and with their assistance have gone through the record. The substantial questions of law are being answered hereinafter. 4(i) Substantial Question of Law No.1 Plaintiffs in present civil suit have prayed for declaring the judgment and decree dated 01.06.1992 obtained by original defendant No. 1 Milkhi Ram in Civil Suit No. 188 of 1991 as nullity and not binding upon them. The objection of defendants (legal heirs of original defendant No.1) is that in case the plaintiffs were aggrieved by the judgment and decree dated 01.06.1992 (Ex. P-2 & P-3), then remedy available to them was to challenge the same by filing the appeal. Civil Suit for declaring the decree a nullity was not maintainable. To appreciate the point formulated by the defendants (appellants), it will be appropriate to first refer to Section 96 of Code of Civil Procedure which provides for remedy of filing appeal from original decree :- “96(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.” Sections 96 to 99 of CPC deal with the procedure for filing appeals from original decrees. A perusal of the these provisions makes it obvious that they are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment and decree but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned. In the light of the above, it can be safely concluded that any aggrieved party can prefer an appeal with the leave of the Court [Refer judgment dated 23.08.2022 passed by Apex Court in Civil Appeal No.5784 of 2022 in My Palace Mutually Aided Co-operative Society Versus B. Mahesh and others]. Present plaintiffs though were not impleaded as defendants in Civil Suit No. 188 of 1991, yet if they were affected by and aggrieved against the judgment and decree dated 01.06.1992. Therefore, remedy of filing third party appeal with leave of the Court was available to them. Next question crops up whether filing and pursuing third party appeal with leave of the Court was the only remedy available to the plaintiffs against the judgment and decree dated 01.06.1992. The answer is ‘no’. There is yet another remedy available to the plaintiffs against the judgment and decree dated 01.06.1992, that being of filing an independent civil suit for declaring the judgment and decree as a nullity on the ground the same was obtained by playing fraud on Court. [Re (1996) 5 SCC 550 titled Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd.]. Following was observed in this judgment regarding availability of remedy of filing separate suit or proceeding against the judgment alleged to have been obtained by fraud :- “22. [Re (1996) 5 SCC 550 titled Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd.]. Following was observed in this judgment regarding availability of remedy of filing separate suit or proceeding against the judgment alleged to have been obtained by fraud :- “22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court’s business. 23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. {See : AIR 1950 Cal 287 Benoy Krishna Mukerjee v. Mohanlal Goenka ; AIR 1943 Pat 127 Gajanand Sha v. Dayanand Thakur ; AIR 1947 Nag 236 Krishnakumar v. Jawand Singh ; ILR (1926) 1 Luck 341 Devendra Nath Sarkar v. Ram Rachpal Singh ; ILR (1929) 4 Luck 562 Saiyed Mohd. Raza v. Ram Saroop ; ILR (1932) 7 Luck 350 Bankey Behari Lal v. Abdul Rahman ; 1955 Ker LT 459 Lekshmi Amma Chacki Amma v. Mammen Mammen. The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court { AIR 1954 Pat 450 Ishwar Mahton v Sitaram Kumar} or to set aside the order recording compromise obtained by fraud. { AIR 1958 Pat 618 Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh ; AIR 1985 Kant 270 Tara Bai v. V.S. Krishnaswamy Rao}. { AIR 1958 Pat 618 Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh ; AIR 1985 Kant 270 Tara Bai v. V.S. Krishnaswamy Rao}. Thus, the remedy available to the plaintiffs, if they were affected by and aggrieved against the judgment and decree dated 01.06.1992 (Ex. P-2 & P-3) obtained by defendants in Civil Suit No. 188 of 1991 wherein they (plaintiffs) were not impleaded, was not only by way of filing third party appeal with leave of Court, but also in form of filing a civil suit for declaring that the judgment and decree in question was a nullity having been obtained by playing fraud upon the Court. Accordingly, the civil suit filed by the plaintiffs seeking declaration that judgment dated 01.06.1992 passed in the Civil Suit No. 188 of 1991 was nullity being result of fraud played upon the Court, was maintainable. Question of law is answered in favour of plaintiffs (respondents No. 2 to 4) and against the defendants (appellants). 4(ii) Substantial Question of Law 2 While answering substantial questions of law 1 supra, it has been held that present independent civil suit, filed by the plaintiffs/respondents No. 2 to 4 for declaration that judgment and decree dated 01.06.1992 (Ex. P-2) obtained by original defendant No. 1 in Civil Suit No. 188 of 1991 was nullity and not binding them being result of fraud, is maintainable. The next question to be determined is whether decree dated 01.06.1992 (Ex. P-2) was indeed passed as a result of fraud practiced upon the Court by Milkhi Ram (original defendant No.1). For answering this question, first it would be in place to decipher what constitutes ‘fraud’. No judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. [Re (1956) 1 All ER 341 (Lazarus Estates Ltd Vs. Beasley)]. Some more precedents on what constitutes fraud noticed in (2012) 11 SCC 574 Badami (Deceased) by her LR Vs. Bhali, are as under :- “30. In S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others [ (1980) 1 SCC 52 ) ] this court commenced the verdict with the following words:- ““Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. Bhali, are as under :- “30. In S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others [ (1980) 1 SCC 52 ) ] this court commenced the verdict with the following words:- ““Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. 31. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party. 32. In Smt. Shrist Dhawan v. M/s. Shaw Brothers[ (1992) 1 SCC 534 ] it has been opined that fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal[ (2002) 1 SCC 100 ], Ram Preeti Yadav v. U. P. Board of High School and Intermediate Education and other[ (2003) 8 SCC 311 ] and Ram Chandra Singh v. Savitri Devi and others[ (2003) 8 SCC 319 ]. 33. In State of Andhra Pradesh and another v. T. Suryachandra Rao[ (2005) 6 SCC 149 ] after referring to the earlier decision this court observed as follows:- “In Lazaurs Estate Ltd. v. Beasley 19 Lord Denning observed at pages 712 & 713, “No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. ” 34. Yet in another decision Hamza Haji v. State of Kerala & Anr.20 it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof. 35. It would not be an exaggeration but on the contrary an understatement if it is said that all facets of fraud get attracted to the case at hand. A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in a hurried manner the plaint is presented, written statement is drafted and filed, statement is recorded and a decree is passed within three days. On a perusal of the decree it is manifest that there is no reference of any kind of family arrangement and there is total non-application of mind. It only mentions there is consent in the written statement and hence, suit has to be decreed. Be it noted, it was a suit for permanent injunction. There was an allegation that the respondent was interfering with the possession of the plaintiff. What could have transpired that the defendant would go with the plaintiff and accede to all the reliefs. It not only gives rise to a doubt but on a first look one can feel that there is some kind of foul play. However, the learned trial Judge who decreed the first suit on 27.11.1973 did not look at these aspects. 36. When the second suit was filed in 1984 for title and the third suit was filed for possession thereafter, the courts below had routinely followed the principles relating to consent decree and did not dwell deep to find out how the fraud was manifestly writ large. It was too obvious to ignore. The courts below have gone by the concept that there was no adequate material to establish that there was fraud, though it was telltale. It was too obvious to ignore. The courts below have gone by the concept that there was no adequate material to establish that there was fraud, though it was telltale. That apart, the foundation was the family arrangement. We have already held that it was not bona fide, but, unfortunately the courts below as well as the High Court have held that it is a common phenomenon that the people in certain areas give their property to their close relations. We have already indicated that by giving the entire property and putting him in possession she would have been absolutely landless and would have been in penury. 37. It is unimaginable that a person would divest herself of one’s own property in entirety in lieu of nothing. No iota of evidence has been brought on record that Bhali, the respondent herein, had given anything to Badami in the arrangement. It is easily perceivable that the rustic woman was also not old. Though the decree was passed in 1973 wherein it was alleged that the defendant was already in possession, she lived up to 1992 and expired after 19 years. It is a matter of record that the possession was not taken over and inference has been drawn that possibly there was an implied agreement that the decree would be given effect to after her death. 38. All these reasonings are absolutely non-plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker: “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indites the warrant for his own arrest.” Fraud has been defined in Section 17 of the Contract Act to mean as under :- “17. In this regard we may profitably quote a statement by a great thinker: “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indites the warrant for his own arrest.” Fraud has been defined in Section 17 of the Contract Act to mean as under :- “17. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:— (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech.” In (2018) 1 SCC 656 (Venture Global Engineering LLC Vs. Tech. Mahindra Limited and another), fraud and its effect on judicial proceedings has been considered as under :- “76. The expression "fraud", what it means and once proved to have been committed by the party to the Lis against his adversary then its effect on the judicial proceedings was succinctly explained by this Court in Ram Chandra Singh vs. Savitri Devi & Ors., (2003) 8 SCC 319 in the following words: “Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.” 77. Similarly, how the leading authors have dealt with the expressions "fraud”, “misrepresentation”, “suppression of material facts” with reference to various English cases also need to be taken note of. This is what the learned author - “Kerr” in his book “Fraud and Mistake” has said on these expressions. 78. While dealing with the question as to what constitutes fraud, the learned author said “What amounts to fraud has been settled by the decision of House of Lords in Derry vs. Peek (f) where lord Herscheel said :- “fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth or (3) recklessly, careless whether it be true or false.” (See Kerr on Fraud and Mistake- 7th Edition Page 10/11)”. 79. The author has said that, Courts of Equity have from a very early period had jurisdiction to set aside Awards on the ground of fraud, except where it is excluded by Statute. 79. The author has said that, Courts of Equity have from a very early period had jurisdiction to set aside Awards on the ground of fraud, except where it is excluded by Statute. So also, if the Award was obtained by fraud or concealment of material circumstances on the part of one of the parties so as to mislead the Arbitrator or if either party be guilty of fraudulent concealment of matters which he ought to have declared, or if he willfully mislead or deceive the Arbitrator, such Award may be set aside. (See - Kerr on Fraud and Mistake - Seventh Edition - pages 424, 425). 80. The author said that, if a man makes a representation in point of fact, whether by suppressing the truth or suggesting what is false, however innocent his motive may have been, he is equally responsible in a civil proceeding as if he had while committing these acts done so with a view to injure others or to benefit himself. It matters not that there was no intention to cheat or injure the person to whom the statement was made. (See - Kerr on Fraud and Mistake – Seventh Edition, page 7) 81. This rule of law is applicable not only between the two individuals entering into any contract but is also applicable between an individual and a company and also between the two companies. (See- Kerr on Fraud and Mistake – Seventh Edition, page 99). 82. The author said that this principle is also not limited to cases where an express and distinct representation by words has been made, but it applies equally to cases where a man by his silence causes another to believe in the existence of a certain state of things, or so conducts himself as to induce a reasonable man to take the representation to be true, and to believe that it was meant that he should act upon it, and the other accordingly acts upon it and so alters his previous position. (See - Kerr on Fraud and Mistake – Seventh Edition, page 110). 83. (See - Kerr on Fraud and Mistake – Seventh Edition, page 110). 83. The author said that where there is a duty or obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak and does not say the thing which he was bound to say, if that be done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was because he had nothing to say, there is a fraud (See- Kerr on Fraud and Mistake-Seventh Edition, page 110).” In the aforesaid background, facts of instant case leading to passing of judgment and decree dated 01.06.1992 (Ex. P-2) and its impact upon the plaintiffs’ rights need to be noticed. 4(ii)(a) The case of the plaintiffs in the present civil suit is that judgment and decree dated 01.06.1992 (Ex.P-2) is not binding upon them. That this judgment and decree is a nullity being result of fraud. The judgment and decree dated 01.06.1992 was passed in Civil Suit No. 188 of 1991. That suit was instituted by defendant No. 1 Milkhi Ram on 30.08.1991 wherein Samphal was the only person impleaded as defendant. Whereas Samphal had not been heard for more than 4 years, hence presumed dead. Present plaintiffs were not made parties in that suit. The prayer made in that suit by Milkhi Ram was that he was cultivating Samphal’s share in the suit land from the times of his father as a non-occupancy tenant. By operation of law, he had become owner of Samphal’s share in the suit land. However, revenue entries did not show him as owner. Samphal was continued to be shown as owner-in-possession in the revenue entries. Milkhi Ram sought declaration that revenue entries showing Samphal as owner-in-possession of land were wrong and illegal and he (Milkhi Ram) be declared as owner-in-possession of Samphal’s share in the suit land. According to plaintiffs, this judgment affected their rights over the suit land. 4(ii)(b) There is force in plaintiffs’ contentions. In the plaint filed by Milkhi Ram on 30.08.1991, (Ex. PW-2/A), residential address of Samphal had been given in the memo of parties. According to plaintiffs, this judgment affected their rights over the suit land. 4(ii)(b) There is force in plaintiffs’ contentions. In the plaint filed by Milkhi Ram on 30.08.1991, (Ex. PW-2/A), residential address of Samphal had been given in the memo of parties. There was no averment in the plaint that Samphal had not been heard of for the past so many years, whereas in the written statement to the present plaint filed on 10.10.1995, defendant No. 1 (Milkhi Ram) has not denied specific pleaded case of the plaintiffs that Samphal was un-heard of for more than 40 years, hence presumed dead. Obvious implication is that original defendant No. 1 had filed the civil suit on 30.08.1991 against a person whom he knew to be dead at that time. The judgment in that suit (Ex. P-2) records that Samphal did not appear to contest the suit despite having been served, hence he was proceeded ex-parte. But in reality, the judgment and decree was passed against a dead person without taking note of this fact and in violation of law and procedure. Milkhi Ram-plaintiff therein (present original defendant No.1) knew that the person against whom relief was claimed had not been heard of for more than 40 years and was presumed in law as dead. Defendant No. 1 had played fraud upon the Court for obtaining judgment and decree dated 01.06.1992 (Ex. P-2). 4(ii)(c) The judgment and decree dated 01.06.1992 (Ex. P-2) records that plaintiff therein (present original defendant No.1) had appeared as PW-1 in support of his contention that he was a non-occupancy tenant over the suit land. That revenue entry qua the suit land in the jamabandi for the year 1987-88 (Ex.P-1 therein) wrongly reflected Samphal to be the owner-in-possession of 07 K-13 M i.e. half share of total land. The oral version of original defendant No. 1 (plaintiff in Civil Suit No. 188 of 1991) went unrebutted. The Court believed the statement of the plaintiff (present original defendant No. 1) and passed ex-parte decree in his favour. 4(ii)(d) The judgment and decree (Ex. P-2) adversely affects plaintiffs’ rights. The plaintiffs’ contentions are that they were also non-occupancy tenants over Samphal’s share in the suit land. They were also entitled to a decree of ownership and possession alongwith original defendant No. 1 in equal shares over Samphal’s share in the suit land. 4(ii)(d) The judgment and decree (Ex. P-2) adversely affects plaintiffs’ rights. The plaintiffs’ contentions are that they were also non-occupancy tenants over Samphal’s share in the suit land. They were also entitled to a decree of ownership and possession alongwith original defendant No. 1 in equal shares over Samphal’s share in the suit land. They were not impleaded as parties to Civil Suit No. 188 of 1991. The judgment and decree dated 01.06.1992 passed in Civil Suit No. 188 of 1991 is a nullity and not binding upon them. The pedigree table of the parties drawn earlier(and available at Ex. P-4) shows that Bangali was the predecessor-in-interest of the parties. He had a daughter named Suhali Devi and two sons Milkhi Ram and Jagdish Chand. The copy of Parivar Register of the parties for the year 1978 has been placed on record as Ex. PW-3/A wherein Bangali has been reflected as head of the joint family. Thus, parties belonged to a joint family in the year 1978. Suhali Devi daughter of Bangali had instituted a civil suit on 29.06.1991 against her brother Milkhi Ram (original defendant No. 1 herein) for arrears of maintenance allowance & for permanent prohibitory injunction. In that civil suit, statement of Milkhi Ram was recorded on 04.11.1997 (Ex.PW-5/A). In his cross examination, he admitted that prior to 1990, he alongwith his brother Jagdish Chand had been cultivating entire land held by them jointly and resided in a joint family which also included their sister Suhali Devi. Once original defendant No. 1(Milkhi Ram) admits cultivation of the suit land by him jointly with his brother Jagdish Chand, once it is proved on record that all children of Bangali were residing in a joint family, once defendant No. 1 (Milkhi Ram) admits of jointly cultivating the suit land with his brother Jagdish Chand from the times of his father, then it was imperative for Milkhi Ram to implead the legal representatives of his brother Jagdish Chand as parties to Civil Suit No. 188 of 1991 wherein he (Milkhi Ram) had sought declaration of his being exclusive owner in possession of Samphal’s entire share in the suit land. The declaration which he sought definitely affected the rights of the plaintiffs as legal representatives of Jagdish Chand over the suit property. The declaration which he sought definitely affected the rights of the plaintiffs as legal representatives of Jagdish Chand over the suit property. Having not been impleaded as party in Civil Suit No. 188 of 1991, the judgment and decree dated 01.06.1992 delivered in Civil Suit No. 188 of 1991 was a nullity and definitely not binding upon the plaintiffs. 4(iii) Substantial Question of Law No. 3. 4(iii)(a) Learned Senior counsel for the appellants (legal heirs of original defendant No.1) also contended on the merits of parties’ claim of tenancy over Sampal’s share in the suit land. Putting forth an agreement dated 20.08.1990 (Ex. D-1), learned Senior counsel for the appellants urged that this agreement was executed between Milkhi Ram and Jagdish Chand in accordance with law. The agreement was regarding family partition between the parties. In terms of para 2 of this agreement, Jagdish Chand had relinquished his rights over Sampal’s share in the suit land in favour of Milkhi Ram. Hence, plaintiffs (legal heirs of Jagdish Chand) cannot be declared as owners of Samphal’s share in the land by virtue of operation of the H.P. Tenancy and Land Reforms Act 1972 in view of their alleged status of being non occupancy tenants over the land. Whereas learned Senior counsel for the plaintiffs (contesting respondents) submitted that the agreement dated 20.08.1990 was an unregistered document hence cannot be read in evidence. It was also argued that in the facts of the case, it stands established that Bangali was the original non-occupancy tenant over Samphal’s share in the suit land. After his death, occupancy rights were inherited by his two sons i.e. Jagdish Chand and Milkhi Ram. Both the sons cultivated the land jointly. Milkhi Ram himself stated this factual position on 04.11.1997 (Ex. PW-5/A). It was thus argued that the findings of learned first appellate Court decreeing the suit are in accordance with facts and law. 4(iii)(b) In 2021 (11) Scale 596 Korukonda Chalapathi Rao & Anr. Vs. Korukonda Annapurna Sampath Kumar, placing reliance upon 2016 (8) SCC 705 titled Subraya M.N. Vs. Vittala M.N. and others and 2019 (6) SCC 409 titled Thulasidhara and another Vs. Narayanappa and others, the appellants therein contended before the Hon’ble Apex Court that there can be an oral relinquishment of the share of family members in the family settlement and family arrangement. Vittala M.N. and others and 2019 (6) SCC 409 titled Thulasidhara and another Vs. Narayanappa and others, the appellants therein contended before the Hon’ble Apex Court that there can be an oral relinquishment of the share of family members in the family settlement and family arrangement. If the terms of said family settlement are reduced into writing and it is only memorandum executed subsequently recording the terms of oral family settlement, then no registration is needed. After taking note of the aforesaid two judgments relied upon by the appellants and various other precedents on the issue including AIR 1976 SC 807 titled Kale and others Vs. Deputy Director of Consolidation and others, Hon’ble apex Court held that Section 49 of the Registration Act deals with the effect of non-registration of documents which are compulsorily registerable under Section 17 of the Registration Act and Transfer of Property Act. Section 49(a) of the Registration Act declares that an unregistered document which is compulsorily registerable cannot affect any immoveable property mentioned therein. Section 49(c) of the Registration Act prohibits admitting of compulsorily registerable documents which are un-registered as evidence of any transaction affecting immoveable property unless it has been registered. The un-registered document can be used as evidence of any collateral transaction subject to the condition that the said co-lateral transaction should not itself be the one which must be affected by a registered document. The law is not that in every case where a party sets up the plea that the Court may look into an un-registered document to show the nature of possession that the Court would agree to it. The cardinal principle would be whether by allowing the case of the party to consider an unregistered document, it would result in breach of mandate of Section 49 of the Registration Act. 4(iii)(c) Whether family arrangement is compulsorily registerable, was deliberated by Hon’ble Supreme Court in 2021 (11) Scale titled Korukonda Chalapathi Rao and another Vs. Korukonda Annapurna Sampath Kumar (supra) as under :- “14. There is a long line of judgments of this court dealing with the question as to whether a family arrangement is compulsorily registrable. We need only refer to the case of Kale v. Dy. Director of Consolidation. This Court has summed up the essentials of the family settlement in the following proposition: “10. There is a long line of judgments of this court dealing with the question as to whether a family arrangement is compulsorily registrable. We need only refer to the case of Kale v. Dy. Director of Consolidation. This Court has summed up the essentials of the family settlement in the following proposition: “10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: “(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” 4(d) In the facts of instant case, Para 2 of the so called family settlement (Ex. D-1) speaks about Jagdish Chand relinquishing his rights over Samphal’s share in the suit land. In the particular facts of the case, learned first appellate Court rightly held that the document allegedly executed on 20.08.1990 was not admissible in evidence. The document created a specific right in the immoveable property in favour of Milkhi Ram to the exclusion of his brother Jagdish Chand. This document was not registered and could not be read in evidence. Neither the plaintiffs nor the defendants have any revenue record in support of their contention of being non occupancy tenants over Samphal’s share in the suit land. Plaintiffs claimed themselves to be in cultivating possession of suit land in equal shares alongwith Milkhi Ram (original defendant No.1), whereas original defendant No. 1 in his written statement claimed himself to be the exclusive non occupancy tenant over Samphal’s share in the suit land. Milkhi Ram in his plaint (Ex. PW-2/A) in Civil Suit No. 188 of 1991 had averred that he had been cultivating the suit land from the times of his father. In his statement placed on record as Ex. PW-5/A, he has stated that prior to 1990, he and his brother Jagdish Chand (predecessor of plaintiffs) resided together in joint family and had been cultivating the entire land jointly. Milkhi Ram’s claim in his written statement filed to the present suit of being in exclusive cultivating possession of suit land, therefore, cannot be believed. PW-5/A, he has stated that prior to 1990, he and his brother Jagdish Chand (predecessor of plaintiffs) resided together in joint family and had been cultivating the entire land jointly. Milkhi Ram’s claim in his written statement filed to the present suit of being in exclusive cultivating possession of suit land, therefore, cannot be believed. If he was a tenant over the land from the time of his father-Bangali and if Bangali had joint family, then in the facts of the case and evidence on record, obvious implication is that Bangali was non occupancy tenant and after his death, the tenancy passed on to his two sons Milkhi Ram and Jagdish Chand. After the death of Jagdish Chand, his share would go on to his sons (plaintiffs). 5. The factual and legal points involved in the case, the pleadings & the evidence were correctly appreciated by the learned first appellate Court. Learned appellate Court was justified in decreeing the suit filed by respondents No. 2 to 4. For the foregoing reasons, I find no merit in the present appeal and the same is dismissed accordingly. Pending applications, if any, also stand disposed of.