Baldev Singh vs Bachan Kaur and others

M.L. Singhal, J.—Bachan Kaur W/o Shamsher Singh filed suit for declaration against her son Baldev Singh to the effect that she was owner

in possession of land measuring 268 Kanals 19 marlas situated in the revenue estate of village, Nahianwala, Tehsil and Distt, Bathinda and decree

passed in civil suit No. 17 of 14.1.1974 decided on 3.4.1974 was illegal, null and void and was the out come of fraud and undue influence and the

same was liable to be set aside and not binding on her rights and for permanent injunction restraining him (Baldev Singh) from alienating the land

measuring 268 kanals 19 marlas ibid and from taking forcible and illegal possession thereof from her. It was alleged in the plaint that she is owner

in possession of land measuring 268 Kanals 19 marlas, Defendant-Baldev Singh is her son. She never suffered any decree in favour of her son-

Baldev Singh any time. Decree said to have been suffered by her on 3.4.1974 in civil suit No. 17 of 14.1.1974 before Senior Sub Judge, Bathinda

was never suffered by her. Decree if any was the out-come of fraud and undue influence. Pal Singh in collusion with Defendant''s father-Shamsher

Singh got the aforesaid decree fraudulently against her. In fact, she was told that she was going to. execute a will in favour of the Defendant and

that she would remain owner of the entire property during her life time and after her death, Defendant will get l/4th share of the property from her.

She was never produced before any court. Her thumb impression was never obtained by the advocate nor was he told that the ownership of l/4th

share was going to be transferred. The aforesaid decree was illegal null and void and was the result of fraud, mis-representation and undue

influence. It was liable to be set aside. It was not binding on her rights. She never came to know of that decree. She came to know of that decree

only on 16.6.1992 i.e., a day prior to the institution of the suit, when Patwari halqa summoned her through chowkidar as mutation had been got

entered by him on the basis of that decree and he wanted her consent. She told the Patwari mat decree obtained by the Defendant was false and

fictitious and was the result of fraud. She never suffered any such decree. No mutation could be entered and sanctioned in favour of the Defendant.

Defendant contested this suit. It was urged that the suit was barred by time. There was no limitation for challenging this decree of the year, 1974

in the year, 1992. She has suffered decree in favour of the Defendant to the extent of l/4th share of the land measuring 268 kanals 19 marlas and

he is in possession of Khasra Nos, 78/6 (9-8), 15/2(2-19), 104/19/2min(2-0), 21(8-0), 22min (3-0), 109//17/2(1-18), 18(8-0), 19(8-0), out of

the said land as co-sharer. She suffered that decree of her own accord in his favour. He is not a stranger to her but is her son. Decree was passed

in accordance with law and with the knowledge of the Plaintiff.

On the pleadings of the parties, the following issues were framed:

Whether the decree passed in civil suit No. 17 of 14.1.1974, decided on 3.4.74 passed by Ld. Senior Sub Judge, is illegal, null and void and in

operative on the rights of the Plaintiff? OPP

Whether the Plaintiff is entitled to declaration and injunction as prayed for? OPP

Whether the suit is time barred? OPP

Whether the suit is not properly valued for the purpose of court fee? OPD

Relief.

Vide order dated 19.11.1986 Civil Judge (Junior Division), Bathinda decreed the Plaintiffs suit for declaration that she was owner in possession

of land measuring 268 Kanals 19 marlas as detailed in the heading of the plaint and the judgment and decree passed in civil suit No. 17 of

14.1.1974 decided on 3.4.1974 was illegal null and void and was the out-come of fraud and as such was not binding on the rights of the Plaintiff

and further decreed for permanent injunction in favour of the Plaintiff restraining the Defendant from alienating the land and further decreed in her

favour restraining the Defendant from taking possession of the land from her illegally and forcibly in view of his finding that Bachan Kaur never

appeared in that suit nor did she filed any written statement nor did she thumb mark any statement said to have been made by her and that the

thumb impression said to have been made by her did not tally with her standard thumb impressions appearing on the plaint, vakalatnama of this suit

and specimen sheet. Plaintiffs suit was found to be within time as having been filed within three years of the date of knowledge of the decree by the

Plaintiff.

Defendant went in appeal which was dismissed by the Additional District Judge, Bathinda vide order dated 7.11.1997.

Still and satisfied, Defendant has come up in further appeal to this Court.

It was submitted by the learned Counsel for the Appellant that Bachan Kaur had suffered decree in favour of her real son Baldev Singh in the

year, 1974 before Senior Sub Judge, Bathinda. Her son filed suit claiming declaration that he was owner of l/4th share of land measuring 268

Kanals 19 marlas. She filed written statement in that suit admitting the claim of her son. She appeared before the court and made statement

admitting the claim of her son Baldev Singh. It was on admitting the claim of Baldev Singh by her first in her written statement and then in the

statement made by her before the court that the court passed decree in his favour declaring that he was owner of l/4th share of the land measuring

268 Kanals 19 marlas situated in the revenue estate of village, Nehianwala. It was submitted that the thumb impressions affixed by her on that

written statement filed in that suit and the statement made by her in that suit tallied with her thumb impression affixed on the paint of this suit namely

S-l and S-2 and on the vakalatnama S-3 and on specimen sheet L1. In support of this submission, he drew my attention to the statement of Dr.

Atul Kumar Singla, Handwriting and Finger Print Expert DW-1 who stated that after comparing thumb impressions Q-l & Q-2 on the written

statement and Q-3 on the statement with the vakalatnama of this suit and L1 on specimen sheet, he was of the opinion that these thumb

impressions are of one and the same lady. Dr. Atul Kumar Singla DW-1 has given detailed reasons for his opinion in his report EX, DW1/1. He

has stated that the questioned thumb impressions marked Q-l and Q-2 on the written statement dated 1.3.1974 and Q-3 on statement dated

3.4.1974 in civil suit No. 17 of 14.1.1974 decided on 3.4.1974 are identical with each other and they tally with the standard thumb impressions in

the basic pattern type, configuration of ridges and individual ridge characteristics. He has stated that configuration of ridges and individual ridge

characteristics can not be collectively present in the thumb impressions of different thumb/ individuals and according to the science of finger prints

comparison, these are sufficient to conclude that the questioned thumb impressions are identical with the standard thumb impressions. He has

stated that the standard thumb impressions marked S-1 to S-3 and L1 are also identical with each other. He has stated that the questioned thumb

impressions marked Q-1 to Q-3 in the summoned file titled Baldev Singh v. Bachan Kaur been affixed by the sane lady, whose standard thumb

impressions are marked S1 to S3 and L1.

Learned Counsel for the Appellant submitted that the statement of Dr. Atul Kumar Singla leaves one in no manner of doubt that the thumb

impressions being attributed to Bachan Kaur in civil suit No. 17 of 14.1.1974 decided on 3.4.1974 by the Senior Sub Judge, Bathinda tally with

her thumb impressions which she has impressed namely S-l and S-2 on the plaint, S-3 on the statement and L1 on the specimen sheet.

Learned Counsel for the Respondent on the other hand submitted that the no credence should be attached to the statement of Dr. Atul Kumar

Singla DW-1 in the face of what Sh. V.B. Bhatnagar, Handwriting and Finger Print Expert PW-1 has stated. Sh. V.B. Bhatnagar PW-1 has stated

that the compared thumb impressions S-l, S-2 on the plaint dated 17.6.1992,S-3 on the vakalatname dated 17.6.1992 with the other thumb

impressions Q-l and Q-2 on the written statement dated 1.3.1974 and Q-3 on the statement of civil suit No. 17 of 14.1.1974 decided on

3.4.1974 by the Senior Sub Judge, Bathinda and he was of the opinion that these thumb impressions are non-identical. He has given reasons for

his opinion in his report Ex. PW1/A.

Reasons given by Dr. Atul Kumar Singla DW-1 for his opinion are more authentic and appealing. Dr Atul Kumar Singla DW-1 has given

detailed reasons for his opinion. He has stated that the questioned thumb impressions and the standard thumb impressions also tally in their

individual ridge characteristics in the nature, positioning and number of intervening ridges between them as detailed in his report. He has marked the

points of identity on photographic enlargements of thumb impressions marked as Q-3 and L1. The points of identity in the type of pattern

configuration of ridges and individual ridge characteristics noted by him cannot be collectively present in the thumb impressions of different

thumbs/individuals.

Science of thumb impressions is an exact science. I do not see any reason why Dr. Atul Kumar Singla DW-1 should not be believed

particularly when Bachan Kaur did not examine the counsel alleged to have been engaged by her in the previous suit and also when Baldev Singh

has stated that his mother Bachan Kaur suffered decree in his favour qua the land measuring 8 Killas 3 kanals and 5 marlas; 67 Kanals 5 marlas.

Previously his maternal grand-mother had gifted this land to him. His mother suffered decree in his favour because the land gifted to him by his

maternal grand-mother was not mutated in his name. His mother suffered decree in his favour of her will and volition.

In my opinion, the leaned Courts below unjustly found that Smt Bachan Kaur did not suffer that decree and some body else had impersonated

her and had allowed the decree to be passed. The findings of the learned courts below on issue No. 1 cannot thus be sustained and as such the

same are accordingly set aside and it is held that Smt. Bachan Kaur had suffered decree in civil suit No. 17 of 14.1.1974 of her free will and

volition and no fraud, mis-representation or un-due influence had been played in the obtaining of the decree upon her.

Learned Counsel for the Appellant further submitted that the Plaintiff''s suit was barred by time. Decree which she. has impugned in the year

1992 was passed on 3.4.1974. It was submitted that there was no limitation for challenging this decree. Decree could have been challenged within

three years of 3.4.1974 by Smt. Bachan Kaur. It was submitted that the Plaintiff rose from slumber after 18 years when there was no limitation.

Suffice it to say, as per Plaintiff she never came to know of this decree. She came to know of this decree when she was called by the Patwari

with a view to sanctioning mutation. Patwari entered mutation on 6.7.1992. He was tolay this mutation before the Assistant Collector IInd Grade

on 21.9.1992 for being sanctioned. She was summoned by the Patwari with a view to her appearing before the Assistant Collector II Grade

Bathinda for opposing or asserting the sanctioning of mutation. In the revenue record Smt. Bachan Kaur was all along figuring. In the revenue

record this decree was never given effect to. She got cause of action to impugn this decree when Baldev Singh was taking steps towards securing

the implementation of the decree in the revenue record. Defendant allowed the decree to remain a paper transaction for all these 18 years. He rose

from his slumber in the year 1992 though he had obtained this decree in the year 1974. Plaintiff could challenge this decree within 3 years of the

date when there was cloud cast on her rights to this property through attempt at securing implementation of this decree in the revenue record by

Baldev Singh. Plaintiff''s suit was within time.

In view of what has been stated above, this appeal succeeds and it is accordingly allowed. The judgments and decrees of the courts below are

set aside and in consequence the suit of the Plaintiff is dismissed. Parties are however, left to bear their own costs.