RSA No.3412 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3412 of 2009 (O&M) Date of decision:05.08.2014 Kamlesh ....Appellant Versus Shanti Devi ....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG1 Whether reporters of local newspapers may be allowed to see judgment?.
2. To be referred to reporters or not?.
3. Whether the judgment should be reported in the Digest?. Present:- Mr. Vijay S.Kajla, Advcate for the appellant. RAKESH KUMAR GARG, J This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby her suit for declaration with consequential relief of permanent injunction was dismissed vide judgment and decree dated 16.10.2006 and the appeal was also dismissed by the lower Appellate Court vide its judgment and decree dated 19.01.2009. As per the averments made, appellant is recorded as owner in possession of the land measuring 1/5th share in the total land measuring 30 kanals 8 marlas being ½ share of 61 kanals 6 marlas vide jamabandi for the year 1999-2000 fully detailed in para No.1 of the plaint. It is her further case that she never transferred her share of the land in question in the name of defendant and the Civil SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3412 of 2009 (O&M) 2 Court decree dated 14.5.1990 vide civil suit No.276 of 1990, whereby her share has been transferred in favour of the defendant is the result of fraud and mis-representation as she never appeared before the Court to transfer the said decree in favour of the defendant and the decree has been got passed by producing some other lady in the Court. It has been further averred by the plaintiff that she came to know about the aforesaid judgment and decree only on 20.02.2003 when she got a copy of the jamabandi of her land from the Halqa Patwari. Defendant refused to admit the claim of the appellant. Hence the necessity arose to file the suit. Upon notice, defendant-respondent appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the plaintiff suffered a civil Court decree of the above said land in favour of the defendant vide civil suit No.276 of 1990. She herself put in appearance in the Court after engaging her counsel and filed written statement as well as recorded her statement in the Court by admitting the defendant as owner in possession of the suit property. It was denied that defendant got this civil suit decree in her favour by placing some other lady in place of plaintiff before the Court. It was stated that she had suffered the decree with her free Will and consent and the suit was also time barred as the decree was well within her knowledge. Thus, the suit was liable to be dismissed. Replication to the written statement was also filed by the plaintiff. In the replication, the plaintiff controverted the averments of SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3412 of 2009 (O&M) 3 written statement and reiterated her stand taken in plaint. From the pleadings of the parties, following issues were framed:- 1. Whether the judgment and decree dated 14.5.1990 is illegal, null and void and the defendant is liable to be restrained from alienating the suit property in any manner on the grounds alleged in the plaint?. OPP2 Whether plaintiff has no locus-standi to file the present suit?. OPD3 Whether the plaintiff has no cause of action against the defendant?. OPD4 Whether the suit of the plaintiff is not maintainable in the present form?. OPD5 Whether the plaintiff has not come to the Court with clean hands and has suppressed the true and material facts from the Court?. OPD6 Relief. To prove her case, the plaintiff-appellant examined two witnesses in all. Plaintiff herself stepped into the witness box as PW1. Parvinder Singh son of Rajender Singh as PW2. In his documentary evidence, the plaintiff-appellant produced decree sheet dated 28.4.1990 Ex.P1, judgment dated 14.5.1990 Ex.P2, copy of plaint Ex.P3, copy of written statement Ex.P4, copy of statement of SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3412 of 2009 (O&M) 4 Kamlesh Ex.P5, copy of statement of Sh. J.B.S.Chauhan, Adv.Ex.P6, copy of Vakalatnama of Kamlesh Ex.P7, copy of jamabandi for the year 2003 Ex.P8 and Jamabandi for the year 1999-2000 Ex.P9. In order to rebut the evidence of the plaintiff-appellant, defendant-respondent examined three witnesses in all. Defendant herself appeared as DW-1. Satish Kumar, DRK, Judicial Record Room as DW2. Ram Kumar, Advocate, District Courts, Karnal as DW3. In her documentary evidence defendant has produced copy of written statement Ex.D1, copy of acknowledgement of Kamlesh Ex.D2, copy of statement of Kamlesh Ex.D3, copy of decree-sheet dated 28.4.1990 Ex.D4, copy of judgment dated 14.5.1990, Ex.D5 and copy of plaint Ex.D6. After considering the evidence on record and hearing learned counsel for the parties, the trial Court reached to the conclusion that plaintiff has failed to prove that the decree dated 14.5.1990 was obtained by the defendant by playing a fraud upon her. The trial Court further observed that the plaintiff has failed to prove the plea of fraud by producing any evidence and further failed to prove that she was not in the knowledge of decree dated 14.05.1990 or that she came to know about the aforesaid decree on 20.02.2003 and thus, the suit was also time barred. Appeal against the aforesaid judgment and decree was also dismissed by the lower Appellate Court vide judgment and decree dated 19.01.2009. SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3412 of 2009 (O&M) 5 Still not satisfied, plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal:- 1. Whether the impugned decree which has been passed on the basis of mutation No.1354 dated 29.9.1989, which is an incorrect document and had been cancelled/dismissed by the Revenue Authorities on the basis of incorrect contents, can be sustained in the eyes of law?.
2. Whether the impugned decree which has been passed on the basis of wrong facts especially when the appellant was not even owner to the extent of 1/6th share of land measuring 123 kanals – 13 marlas, was liable to be set aside on the basis of fraud, mis-representation and having been passed on the basis of false documents?.
3. Whether the respondent has procured the impugned decree by playing fraud and mis-leading the Hon'ble Court by placing on record false documents giving incorrect and false facts?.
4. Whether the learned lower Appellate Court has erred in law in ignoring the provisions of Section 39 of the Punjab Land Revenue Act, 1887, wherein it has been laid down that mere delay in SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3412 of 2009 (O&M) 6 sanctioning of mutation can only result in payment of five times of the mutation fee as penalty and there is no other consequence attached to the delay in sanctioning of mutation?.
5. Whether the learned lower Appellate Court has erred in law in not even considering and dealing with the mutation No.2027 dated 24.6.2003 (Ex.P-8) according to which the appellant was not even owner of the total land decreed in favour of the respondent?.
6. Whether the learned lower Appellate Court has erred in law in rejecting the application under Order 41 Rule 27 CPC?.
7. Whether the impugned judgments and decrees are patently illegal,ultra vires, void and without jurisdiction and are liable to be set aside?.
8. Whether grave and manifest injustice has been caused to the appellant in the matter?. Learned counsel for the appellant has vehemently argued that he moved an application under Order 41 Rule 27 CPC for leading additional evidence before the lower Appellate Court. However, the same was rejected illegally and thus, the impugned judgment and decree is liable to be set aside as evidence which was necessary for deciding the matter effectively has not been SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3412 of 2009 (O&M) 7 considered. However, it may be noticed that though an argument has been raised, yet no application has been filed by the appellant before this Court for allowing any additional evidence. Not only this,neither the order of the lower Appellate Court rejecting her prayer for leading additional evidence has been placed on record, nor the said order has been challenged. In view thereof, no fault can be found with the order of the lower Appellate Court rejecting her application for leading additional evidence. Even before this Court, it has not been argued as to how the evidence sought to be led was relevant. There is absolutely nothing on record to controvert the findings recorded by the Courts below against the appellant. Thus, no substantial questions of law, as raised, arise in this appeal. Dismissed. August 05, 2014 (RAKESH KUMAR GARG) savita JUDGE SAVITA DEVI KADIAN201408.07 16:35 I attest to the accuracy and integrity of this document High Court Chandigarh