Anil Kumar vs Satbir Singh and others

L.N. Mittal, J.

CM No. 7527-C of 2012 in/and

R.S.A. No. 2804 of 2012

Defendant No. 1-Anil Kumar who was successful in the trial Court but has been unsuccessful in the lower appellate Court has filed this second appeal. Suit was filed by plaintiff-Chander Singh (since deceased and represented by respondents No. 1 to 4 as his legal representatives) against appellant Anil Kumar as defendant No. 1 and against his father Sajjan Kumar as defendant No. 2. In the suit, the plaintiff challenged consent judgment and decree dated 11.04.1996 passed in a previous suit in favour of Anil Kumar-defendant No. 1 herein against plaintiff Chander Singh and defendant No. 2-Sajjan Kumar herein. It is undisputed that Chander Singh and Sajjan Kumar are real brothers whereas Anil Kumar defendant No. 1 is son of defendant No. 2-Sajjan Kumar. The plaintiff alleged that he never appeared in the previous suit nor filed any written statement nor made any statement in Court nor thumb marked or signed any document to suffer the impugned consent decree. There was also no family settlement on the basis of which alleged consent decree was passed. The plaintiff is illiterate and simpleton. Defendant No. 2, who used to pursue all the matters, obtained the consent decree dated 11.04.1996 by fraud and misrepresentation. The plaintiff continues to be owner in possession of the suit land i.e. 1/4th share of the land mentioned in the plaint.

Defendants controverted the plaint averments and defended the impugned consent decree dated 11.04.1996. It was pleaded that plaintiff voluntarily suffered the said decree which is based on family settlement arrived at between the parties. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Sonipat vide judgment and decree dated 24.09.2010 dismissed the plaintiff''s suit. However, first appeal preferred by the plaintiff through legal representatives has been allowed by learned Additional District Judge, Sonipat vide judgment and decree dated 30.04.2012 and thereby suit filed by the plaintiff has been decreed. Feeling aggrieved, defendant No. 1 has filed this second appeal.

I have heard learned counsel for the appellant and perused the case file.

The plaintiff has led plethora of cogent evidence to prove his case. The plaintiff himself stepped into the witness box and examined different relatives including family members in support of his case. Maha Singh PW-2 and Brahma PW-2 are common relatives of the parties. Bharpai PW-4 is mother-in-law of both plaintiff and defendant No. 2 and is also thus their common relative. Ompati PW-5 is real sister of plaintiff and defendant No. 2. Kartar Singh PW-6 is nephew of plaintiff and defendant No. 2. Dharam Chand PW-7 is real brother of plaintiff and defendant No. 2. Rajender PW-8 and Khyali Ram PW-9 are neighbours of the parties. All of them have fully supported the plaintiff''s case.

On the other hand, both defendants (son and father) appeared as their own witnesses and broadly stated according to their version. Raj Kumar DW-3 and Rakesh DW-4 stated about ownership and possession of the defendants over the suit land. Chet Ram DW-5 was Clerk (Munshi) of Mr. R. D. Gaur, Advocate who represented the plaintiff and defendant No. 2 and other brothers in surplus cases. Chet Ram stated that only defendant No. 2 Sajjan Kumar used to visit their office for conducting the said cases. Chet Ram did not even know the other brothers including the plaintiff.

Along with second appeal appellant has also moved application bearing CM No. 7527-C of 2012 for additional evidence to place on record documents of the previous suit in which impugned consent decree was passed i.e. plaint, written statement, statement of parties/counsel and judgment and decree.

Counsel for the appellant contended that as per plant Annexure A-1 of the previous suit, there was family settlement between the parties under which plaintiff become owner in possession of the suit land of the share of the plaintiff herein as well as of the share of defendant No. 2 herein. It was pointed out that plaintiff and defendant No. 2 herein, who were defendants in the previous suit, vide their written statement Annexure A-2 admitted the said claim of defendant No. 1 herein (plaintiff in the previous suit) regarding aforesaid family settlement. Plaintiff and defendant No. 2 herein also made statement Annexure A-3 that the said suit be decreed and consequently the said suit was rightly decreed by judgment and decree Annexure A-4.

The aforesaid contention cannot be accepted. Plaintiff has categorically stated that he did not appear in the previous suit and did not sign or thumb mark any document in that suit. Thus he neither filed written statement in that suit nor made statement in Court to suffer the impugned consent decree. In view of said statement of the plaintiff, onus was on the defendants to depict that the plaintiff had appeared in the previous suit and had filed written statement as well as made statement in Court to admit the claim of defendant No. 1 herein who was plaintiff in the previous suit. However, no such cogent evidence has been led by the defendants. Defendants have not examined the Advocate who represented the present plaintiff in the previous suit. He was the best witness to depose if the present plaintiff has appeared in that suit to file the written statement and to make statement in the Court. The said best available evidence has been withheld. Moreover, statement Annexure P-3 allegedly made in Court in the previous suit by the plaintiff herein purports to bear his thumb impression. Science of comparison of finger prints is perfect science. In spite thereof, defendants did not examine any finger print expert to depict that the aforesaid thumb impression was in fact affixed by the plaintiff herein. Thus it is manifest that plaintiff''s testimony that he had not appeared in the previous suit nor filed written statement nor made statement therein, practically stands unrebutted. Available evidence has not been led by the defendants and, therefore, adverse inference arises against them.

In addition to the aforesaid, plaintiff herein had wife, three daughters and a son. There is no reason why he would forego and relinquish his entire suit land in favour of his nephew i.e. defendant No. 1-appellant herein. The alleged family settlement was thus no where in existence and impugned consent judgment and decree appear to have been obtained by impersonation and fraud. There is practically no evidence to depict that plaintiff herein himself suffered the said consent judgment and decree.

All the close and common relatives of the parties have supported the plaintiff''s case. This evidence led by the plaintiff is cogent and has not been rebutted by the defendants.

Trial Court erroneously dismissed the plaintiff''s suit on the ground that separate suit to challenge the impugned consent decree is barred by Order 23 Rule 3A of the CPC (in short, ''CPC''). Said approach of the trial Court is completely erroneous and illegal and has been rightly upset and discarded by the lower Appellate Court. Impugned judgment and decree dated 11.04.1996 are not based on compromise but were based on alleged admission. Thus the said judgment and decree were passed under Order 12 Rule 6 CPC and not under Order 23 Rule 3 CPC. Consequently separate suit to challenge the same is not barred by Order 23 Rule 3A CPC.

There is no ground to allow proposed additional evidence at the stage of second appeal. No reason has been mentioned in the application for additional evidence as to why this evidence was not adduced in the trial Court at appropriate stage. Accordingly, application bearing CM No. 7527-C of 2012 for additional evidence is meritless and is dismissed. For the reasons aforesaid, I find that suit of the plaintiff has been rightly decreed by the lower appellate Court. Finding of the lower Appellate Court in this regard is fully justified by the evidence on record and is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. The said finding, therefore, does not warrant interference. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is meritless and is accordingly dismissed in limine.