Rajinder Kaur vs Santokh Singh and Others

Rakesh Kumar Garg, J.—This is plaintiff''s appeal challenging the judgment and decrees of the Courts below whereby her suit for declaration that plaintiff-appellant was owner in joint possession with consequential relief of permanent injunction restraining respondent No. 1 from alienating the suit land, and for joint possession, was dismissed by the Courts below.

As per the averments, plaintiff and defendants were children of Ajmer Singh who died intestate in May 1992. After his death, mutation No. 647 was sanctioned on 18.7.1992 in favour of both the parties to the extent of 1/3rd share each regarding suit land and other properties left behind by Ajmer Singh. Defendant No. 1 did not raise any objection at the time of sanction of mutation nor he produced judgment and decree dated 28.2.1984. However, defendant No. 1 got entered mutation No. 690 on 29.1.1996/8.2.1999 on the basis of of collusive decree dated 18.2.1984 passed in civil suit No. 60 of 23.1.1984. The aforesaid decree was fictitious and illegal and was the result of fraud and misrepresentation. Hence the plaintiff filed the present suit.

Upon notice, defendants filed written statement submitting therein that the suit is hopelessly time barred. Mutation No. 647 was wrongly sanctioned on 18.7.1992. The civil Court decree dated 18.2.1984 was passed legally in favour of the defendants. Against the wrong sanction of mutation No. 647 defendant filed an appeal which was decided on 29.9.1995 and appellant along with her counsel appeared in that case. Even respondent filed civil suit No. 399 on 17.2.1995 for declaration to get the mutation No. 647 declared as wrong and illegal in which plaintiff-appellant appeared and later on the suit was withdrawn in view of the sanctioning of mutation on the basis of civil Court decree. Even defendant No. 1 filed a suit for permanent injunction. Mutation No. 690 was entered in favour of defendant No. 1 on the basis of the civil Court decree and thus the suit was liable to be dismissed.

On the pleadings of the parties, the trial Court framed the following issues:

Whether the plaintiff is owner in possession of the property in suit as alleged? OPP

Whether the judgment and decree dated 18.2.1984 passed in civil suit No. 60 of 1984 is wrong, illegal as alleged? OPP

Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP

Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP

Whether the plaintiff is entitled for joint possession of the property in suit? OPP

Relief.

The following additional issues were also framed on 9.6.2006:

5A.Whether the suit of the plaintiff is hopelessly time barred? OPD

5B.Whether the plaintiff has concealed the material facts and has not come to court with clean hands. If so to what effect? OPD

5C.Whether the defendant is entitled to the heavy compensatory cost of Rs. 11000/- for bringing the false and successive suit to harass the defendant? OPD

After considering the evidence on record, and hearing the learned Counsel for the parties, the trial Court found that decree dated 18.2.1984 passed in Civil Suit No. 60 of 1984 was legal and valid and thus plaintiff was not owner in possession of the suit property. Resultantly, issues No. 1 to 5 were also decided against the appellant. Under issue No. 5A the suit of the appellant was held to be time barred. Issues No. 5B and 5C were decided against the respondents as the same were not pressed. Resultantly, trial Court dismissed the suit. The appeal filed by the plaintiff-appellant before the lower Appellate Court challenging the judgment and decree of the trial Court, was also dismissed.

Still not satisfied, the plaintiff has filed this appeal before this Court claiming that the following substantial questions of law arise out of this appeal for consideration:

(i)Whether a father can give away his ancestral property in favour of his son ignoring the daughter?

(ii)Whether a decree obtained on the basis of admission in the written statement required the registration?

(iii)Whether a suit challenging a decree along with other reliefs can be dismissed on the ground of limitation when the decree was not within the knowledge of the plaintiff?

The contention of the learned Counsel for the appellant before this Court is that since his case was pending before the Revenue Authorities before filing the present suit, he is entitled to the benefit of proviso of Order 7 Rule 6 of the CPC to claim exemption from the limitation.

A perusal of the impugned judgment and decrees would show that neither such plea was ever raised in the written statement nor before the courts below. The Hon''ble Apex Court in the case of Bachhaj Nahar Vs. Nilima Mandal and Another, has authoritatively laid down that any substantial question of law which is neither pleaded nor proved cannot be allowed to be raised for the first time in Regular Second Appeal.

Faced with this situation learned Counsel for the appellant has further argued that the impugned judgment and decree was obtained by playing fraud. It is well settled that fraud vitiates everything and, therefore, the appeal is liable to be accepted and the impugned judgment and decrees of the Courts below are liable to be set aside. In support of his case, learned Counsel for the appellant has relied upon a judgment of the Supreme Court in the case of S.P. Changlvaaraya Naidu (dead) by LRs. v. Jagannath (dead) by L.Rs. reported as 1995 (1) P.L.R. 293. However, merely an averment that the decree is forged and result of fraud and misrepresentation is insufficient to prove the fraud as the appellant has failed to prove the same. From the perusal of the impugned judgment and decrees, I find that the plea of fraud was neither pressed nor proved in the Courts below. Thus I find no merit in this appeal as no substantial question of arises.

Dismissed.