Sher Singh vs Labh Kaur

M. Jeyapaul, J.—The plaintiff who was non suited by both the Courts below in the suit filed by him for declaration that he was owner in possession of the suit land and also for permanent injunction restraining the defendants from alienating this suit property has preferred the present appeal. Now his legal heirs have come on record to prosecute the appeal on his demise.

The plaintiff has contended in the plaint that he was owner in possession of the suit land as recorded in Jamabandi and Khasra Girdawari. On the basis of a fictitious decree the defendants started ascertaining themselves as the owners of the land and they also tried to alienate the suit property. Contending that the defendants have no right in the suit property, the suit has been filed for the reliefs as stated supra.

The 1st defendant Gurcharan Singh, the son of the plaintiff, admitted the allegations made in the plaint by his father. He has contended that he has no right in the suit property. He was not aware of any decree passed by the Court against the plaintiff, he has pleaded.

The 2nd and 3rd defendants who were the wife and son of Baltej Singh respectively have contended that the plaintiff Sher Singh suffered a decree in favour of his sons the 1st defendant herein and Baltej Singh, the husband and father of defendants 2 and 3 on 6.9.1983. After the demise of Baltej Singh the defendants 2 and 3 has become the owners of the land to an extent of 1/2 share. The plaintiff has no locus standi to file the suit. He was estopped from filing the suit by his act and conduct, it was contended.

In the replication the plaintiff contended that he never suffered any decree in favour of Gurcharan Singh and Baltej Singh. Nor had he appeared in the Court. The decree would have been obtained by impersonation.

The trial Court and the 1st Appellate Court having thoroughly adverted to the evidence on record came to the conclusion that the suit filed by the plaintiff without seeking the material relief for setting aside the decree suffered by the plaintiff on 6.9.1983 was not maintainable. The Courts below have also held that the plaintiff in fact suffered a collusive decree in favour of his two sons namely Gurcharan Singh, the 1st defendant herein and Baltej Singh the husband and father of the defendants no. 2 and 3. Ultimately the suit filed by the plaintiff was dismissed.

The following substantial questions of law have arisen for determination in the appeal:-

(i) Whether the replication filed by the plaintiff can form part of the plaint pleadings.

(ii) Whether the Courts below erred in dismissing the suit on misappreciation of evidence on record.

The learned counsel appearing for the appellants would submit that inasmuch as a decree behind the back of the plaintiff was obtained by playing fraud and misrepresentation, the plaintiff need not seek for setting aside such a decree. The evidence of the material witnesses examined before the trial Court was not properly evaluated by the Courts below. The Courts below committed an error in accepting the evidence of DW8 Atul Kumar Singla, a hand writing expert examined on the side of the defendants and rejecting the evidence of PW4 Varinder Bhushan, a hand writing expert examined on the side of the plaintiff.

The learned counsel appearing for the 2nd and 3rd defendants would submit that the plaintiff who was aware of the decree suffered by him had failed to allege that the decree was obtained by fraud and misrepresentation in the original plaint filed by him. Therefore, a new plea set up in the replication filed by him to the effect that a decree was obtained by fraud and misrepresentation does not relieve the plaintiff of his legal obligation to seek mandatorily the relief of setting aside the decree obtained against the plaintiff. It is his submission that the Courts below weighed the entire evidence in proper perspective and accepted the evidence of the defendants and dismissed the suit.

It is the admitted position that the thumb impressions of the plaintiff found in Ex. P1, the statement allegedly suffered by the plaintiff before the Court in the earlier collusive suit filed against him, Ex. P2 the written statement filed by the plaintiff in the above suit in his capacity as the defendant and Ex. P3 affidavit sworn to by him in the above proceedings were found super imposed and as a result of which no definite opinion could be drawn by PW4 Varinder Bhushan an expert witness as regards the thumb impression of the plaintiff in those disputed documents. Yet another fact also has some importance in the context of the opinion expressed by PW4. It appears that PW4 never took an enlarged photograph of the alleged thumb impression of the plaintiff found in those documents namely Ex. P1, P2 and P3. Therefore, the evidence of PW4 an expert witness examined on the side of the plaintiff does not carry any weight in the matter of determination of the question whether the plaintiff subscribed his thumb impressions on those documents.

DW7 Surinder Lal, Advocate had deposed that the affidavit Ex. P3 was sworn to by the plaintiff Sher Singh in his presence. No enmity was attributed to DW7. There is no reason to disbelieve the evidence of Surinder Lal, Advocate who was examined as DW7. From the evidence of DW7 it is found that Sher Singh had in fact sworn to an affidavit Ex. P3 and produced the same before the Court in the earlier suit proceedings which culminated in a collusive decree.

The 1st defendant Gurcharan Singh had joined his brother Baltej Singh and filed the earlier suit against his father to obtain a collusive decree. But the facts emerged in this case would demonstrate that Gurcharan Singh though obtained 1/2 share in the suit property as a result of the collusive decree suffered by his father the plaintiff herein, he elected to support his father in the present suit with an eye to have the entire property in the name of his descendants. Now it is submitted that the plaintiff has chosen to bequeath the entire property in favour of the children of Gurcharan Singh. No wonder Gurcharan Singh had chosen to support his father in the present suit completely distancing himself from the earlier suit proceedings. He had in fact jointly filed the earlier suit along with his brother as against his father for obtaining a collusive decree.

The above view of mine is fortified by the fact that DW8 Atul Kumar Singla yet another expert witness examined on the side of the defendants has categorically deposed that the signatures of 1st defendant Gurcharan Singh in Ex. D1 plaint, filed in earlier suit and Ex. D2 Power of Attorney given by the 1st defendant along with his brother Baltej Singh in the earlier suit did tally with his admitted signature found in Ex. D3 summons he received in the present suit. The above facts and circumstances amply demonstrate that not only Sher singh the plaintiff in the suit but also his son the 1st defendant Gurcharan Singh having consciously participated in the earlier suit proceedings completely suppressed the collusive decree that emerged in the said suit just to deprive the lawful share of 2nd and 3rd defendants who are the unfortunate widow and daughter of deceased Baltej Singh.

In my considered view, both the Courts below have rightly evaluated the evidence on record and arrived at a conclusion that the plaintiff having suffered a collusive decree earlier suppressed the same and filed the present suit as though the said decree was obtained by fraud and misrepresentation. There is no substantive evidence available on record to show that the earlier decree was suffered by the plaintiff on account of the fraud and misrepresentation as alleged by the plaintiff. Therefore, the 2nd substantial question of law formulated by this Court is answered accordingly.

The replication was filed by the plaintiff in the present suit well after the written statement was submitted by the 2nd and 3rd defendants contending that a valid collusive decree was suffered by the plaintiff herein in the earlier suit. In the replication it has been contended by the plaintiff that the decree allegedly suffered by him was the outcome of fraud and misrepresentation.

This Court in Salig Ram and Another Vs. Shiv Shankar and Others, has held as follows:-

"It is a well-settled rule that replication is a part of the pleadings and anything which is specifically stated in the replication and for the first time, has to be controverted, and if it is not controverted and is allowed to pass it must be assumed that the plea raised is accepted."

In view of the above ratio laid down by this Court, I find that the replication filed by the plaintiff will form part of the pleadings. It may not be out of place to refer the fact that the defendants 2 and 3 had already asserted through their submissions that the plaintiff consciously suffered earlier a valid decree. Therefore, No reply to the allegation found in the replication by the defendants 2 and 3 is warranted in the facts and circumstances of this case.

As already held by this Court there is no substantive evidence to establish the allegation of the plaintiff through replication that the decree was obtained by the 1st defendant and Baltej Singh on account of fraud played and misrepresentation made by them. In other words the plaintiff failed to establish that a decree was suffered by him as a result of fraud played and misrepresentation made by the defendants in the said suit.

A decree obtained by playing fraud on the Court and making misrepresentation before the Court is a nullity and non-est in the eyes of law. No separate prayer for setting aside such a decree which is a nullity and non-est in the eyes of law is warranted in a suit primarily filed for declaration of title and for permanent injunction. But in the instant case the plaintiff having cooperated for passing a collusive decree has come out with a false plea that he was not aware of the decree obtained against him and that such a decree was obtained by playing fraud and misrepresentation. The plaintiff in the above factual scenario should have filed a suit with a prayer for setting aside such a decree obtained before ever seeking a relief for declaration of title. The 1st substantial question of law is ordered accordingly.

In view of the above, the appeal fails and it stands dismissed with cost.