Zailo vs Ram Saran and Another

R.L. Anand, J.—Unsuccessful plaintiff Smt. Zailo has filed the present R.S.A. which has been directed against the judgment and decree dated 18.2.1995 passed by the Court of Shri M.M. Aggarwal, Additional District Judge, Patiala, affirming the judgment and decree dated 3.8.1993 passed by the Court of Shri S.K. Garg, Sub-Judge, Nabha, whereby the suit of Smt. Zailo plaintiff was dismissed.

Brief facts of the case are that the plaintiff - appellant Smt. Zailo filed a suit for declaration that the defendants are her step brothers and that she had 3/50th share in the suit land and was joint owner with the defendants, who had fiduciary relationship with her. She alleged that the defendants were taking undue advantage; they played fraud upon her and by misrepresentation they obtained a judgment and decree dated 7.12.1989 from the Court of Shri S.S. Hundal, Sub-Judge 1st Class, Nabha, and that the said decree was liable to be set aside. The grounds set up by the plaintiff were that she was an illiterate and simpleton lady. The defendants approached her with a representation that joint holding was to be separated and for that partition proceedings were to be "initiated in the Court. They obtained her thumb impressions upon some blank papers and used the same in the Court. There was no family settlement between her and the defendants with respect to the suit land nor she was ever served in the suit. In these circumstances decree dated 7.12.1989 being illegal, null and void be set aside and she prayed for a declaration to that effect.

The suit was contested by the defendants who stated that the land in question fell to their share by virtue of oral family settlement, after harvesting the crop of Hari 1988. In pursuance of the settlement possession was delivered to the defendants. A suit was filed by the defendants on the basis of the settlement and that plaintiff Smt. Zailo admitted in that suit by making a consent statement that the suit may be decreed, which was so decreed on 7.12.1989. Smt. Zailo engaged a counsel, who appeared in the Court, filed the written statement and also made a statement in the Court on the basis of which decree dated 7.12.1989 was passed; so much so, on the basis of the decree the mutation was sanctioned in favour of the defendants. The defendants alleged that the plaintiff cannot be permitted to attack the decree by taking false pleas.

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

Whether plaintiff is joint owner in joint possession of 3/50 share measuring 7 Kanals 12 Marias in the suit land? OPP.

Whether the decree passed by Sh. S.S. Hundal, the then S.J.I.C., Nabha, decided on 7.12.1989 titled as Ram Saran v. Zailo, qua the suit land, is illegal, null and void, without jurisdiction, result of misrepresentation and fraud, undue influence and coercion and is liable to be ignored and set aside? OPP.

Whether the suit is bad under Order 23 Rule 3-A, C.P.C.? OPD.

Whether the suit is barred by principle of Res judicata, u/s 11 and Order 2 Rule 2, C.P.C.? OPD.

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial issues Nos. 1 and 2 were decided against the plaintiff. Finally the plaintiff was non-suited vide judgment and decree dated 3.8.1993.

Aggrieved by the said judgment and decree plaintiff Smt. Zailo filed the first appeal in the Court of Shri M.M. Aggarwal, Additional District Judge, Patiala, who vide the judgment and decree dated 18.2.1995 dismissed the appeal. Still not satisfied with the decisions of the Courts below, the plaintiff has filed the present appeal.

I have heard Shri S.N. Saini, learned counsel appearing on behalf of the appellant, and Shri V.K. Jain, Senior Advocate, appearing on behalf of the respondents, and with their assistance have gone through the record of the case.

Learned counsel for the appellant has assailed the findings of the trial Court on issues Nos. 1 and 2 only and I shall confine my discussion on these issues. Learned counsel submitted that it stood proved from the record that fraud was played and misrepresentation was made on behalf of respondents Ram Saran and Zora Singh and that the decree dated 7.12.1989 is not binding upon the alleged rights of the plaintiff, who continues to be the co-sharer with the defendants. In support of his contention learned counsel for the appellant has drawn my attention to the statement of Mr. Sarwan Singh Guran, Advocate, who appeared as D.W1. The counsel submitted that according to this witness he did not know Smt. Zailo personally and Zailo was not got identified by him before he made his appearance before the Court of Sub-Judge. The counsel also submitted that in fact Smt. Zailo was a simpleton lady, who acted upon misrepresentation of the defendants by putting her thumb-impression on the blank papers, which were misused by the defendants-respondents. The defendants prepared a signed written statement and filed the same in the Court. In this manner the decree dated 7.12.1989 has been passed and it cannot affect the rights of the plaintiff with regard to the suit land.

On the contrary, learned counsel appearing on behalf of the respondents submitted that it was for the plaintiff to establish that a fraud had been played upon her or that any misrepresentation was made to her. Rather the facts are that under a family settlement, the plaintiff herself engaged a lawyer and she signed on the written statement; so much so she appeared before the Court in support of her written statement a agreeing that the suit may be decreed in favour of her step brothers. Not only this, the plaintiff even appeared before the revenue authorities at the time of mutation, which was sanctioned in her presence in favour of the defendants. Shri V.K. Jain, Senior Advocate, submitted that onus was on the plaintiff to prove by leading cogent and convincing evidence that the defendants played a fraud upon the plaintiff. Her conduct shows that she remained silent for more than two years in challenging the decree dated 7.12.1989 when the present suit was filed on 1st April, 1992.

After considering the rival contentions of the parties, I am of the consider view that this appeal is devoid of any merit. Exhibit P5 is a copy of the written statement dated 23rd November, 1989. It appears that there was some typographical mistake. The seal of the Court on this document is dated 22nd November, 1989 indicating that the written statement was filed in that suit on 22.11.1989 and not on 23.11.1989. Assuming for the sake of argument that the defendants by one way or the other managed to obtain the thumb impression of plaintiff Smt. Zailo on the written statement (Ex.P5), how the plaintiff can explain the document Ex.P6, which is her statement recorded in the Court in the presence of her lawyer. A perusal of Exhibit P6 would show that Smt. Zailo has categorically stated therein that the plaintiff in that suit (now defendants) were her brothers. She admitted the correctness of the plaint and agreed that the decree may be passed against her. She further deposed that she had put her thumb impression on the written statement and the parties to the suit may be left to bear their own costs. The statement of Smt. Zailo was read over and explained to her. She admitted the statement as correct and she put her thumb impression on, the same. There is a sanctity to the Court proceedings and extra weight has to be given to the judicial proceedings. Otherwise it would be open to anybody to say that the judicial proceedings were taken at his or her back. Perusal of Exhibit P6 further would show that Smt. Zailo has acknowledged her thumb impression on the written statement (Exhibit P5). In these circumstances the onus was very heavy on the plaintiff to establish that she was subjected to misrepresentation or that fraud had been played upon her. Her mere saying or alleging in the present suit that the defendants represented that her thumb impression was required for the mutation/partition purposes would not cut ice. In her statement while appearing as P.W. 1 the plaintiff has not corroborated her allegations as mentioned in her plaint. Rather she stated that she came to the Courts and while sitting under a Pipal Tree her thumb impression was obtained by playing fraud upon her. This was not her case in the plaint. When the parties had no issue, the trial Court could decree the cause of the plaintiffs on 22.11.1989 itself, but for consideration it was adjourned to 7.12.1989. In the trial Court Smt. Zailo was represented by her counsel Shri Sarwan Singh Guran, who appeared as D.W.I, who categorically deposed that Smt. Zailo engaged him as lawyer in the said suit. She thumb marked on the written statement and thereafter it was filed in the Court. The statement of Shri S.S. Guran cannot be rejected merely on the ground that he did not know Smt. Zailo personally. A lawyer is not supposed to know personally his every client nor it is the mandate of any rule or regulation that the attorney should get his principal identified from some third person. The plaintiff has to prove the fraud as alleged by her. The statement of Shri Surinder Gautam (D.W.2), who was working as Reader in the Court of Shri S.S. Hundal, categorically stated that Zailo alias Jarnail Kaur made the statement on 22.11.1989 in the Court. Fortunately, her statement was recorded by him on the dictation of the Presiding. Officer. The Statement was read over and explained to Smt. Zailo, who thumb marked the same as a token of its correctness in the presence of Shri S.S. Guran, Advocate. The humb impression of Smt. Zailo has also been compared by Dr. Atul Kumar Singla, Handwriting and Finger Prints Expert.

The things do not rest here. On the basis of the decree, mutation was sanctioned in favour of the defendants-respondents vide mutation Exhibit D1. The defendants deposed that the plaintiff was even present at the time of the mutation proceedings. This part of the statement of the defendants has not been rebutted successfully by the plaintiff.

There is concurrent finding of the Court below that Smt. Zailo suffered a consent decree of her own and no fraud or misrepresentation or undue influence was exercised, upon her. Such findings cannot be disturbed in the, second appeal when the plaintiff has not been able to prove beyond reasonable doubt that undue influence/misrepresentation was played upon her. On mere conjectures and surmises or on suspicion, howsoever strong may be, the concurrent findings cannot be disturbed. The plaintiff was required to prove beyond reasonable doubt that fraud had been played upon her. I do not find any infirmity in the findings of the Courts below on issues Nos. 1 and 2.

I do not find any merit in this appeal and the same is hereby dismissed leaving the parties to bear their own costs.