Judgment:
R.L. Anand, J.
1. This is a defendant's appeal and has been directed against the judgment and decree dated 23.11.1991 passed by the Court of Additional District Judge, Gurgaon, who affirmed the judgment and decree dated 27.9.1990 passed by the Court of Sub Judge, Gurgaon, who decreed the suit of the plaintiff-respondent Smt. Giano.
2. The brief facts of the case are that Smt. Giano plaintiff filed a suit for declaration against defendant Singh Ram that the judgment and decree dated 12.8.1985 passed by the Court of Shri L.C. Sharma, Sub Judge III Class, Gurgaon in Civil Suit No. 803 of 1985 titled Singh Ram v. Giano was obtained by fraud and it is illegal, void and is not binding upon the rights of the plaintiff. The said suit No. 803 of 1985 was filed by Singh Ram for declaration with respect to agricultural land in suit which was standing in the name of Smt. Giano. Written Statement admitting the claim in that suit was filed and it was not contested and the judgment and decree were passed in favour of Singh Ram and against the plaintiff Smt. Giano declaring Singh Ram to be the owner of the suit land. That decree was suffered by consent. Smt. Giano has alleged that she never received any notice from the Court concerned in the previous suit; that she never appeared or appointed any lawyer, she never filed any written statement; she never made any statement giving her consent to the suit being decreed. In nut shell Smt. Giano has alleged that judgment and decree passed in Civil Suit No. 803 of 1985 was obtained by defendant-appellant Singh Ram by playing a fraud upon her and upon the Court by putting some other lady.
3. The suit was contested by the defendant-appellant who denied the allegations of Smt. Giano and raised the plea that she suffered decree in the previous suit with her own consent and no fraud was played upon her. It was also pleaded by Singh Ram that Smt. Giano has not challenged the decree that the suit is not maintainable; that the plaintiff is estopped from filing the suit by her own act and conduct.
4. On the above pleadings of the parties, the trial Court framed the following issues:-
1) Whether the Judgment/decree dated 12.8.1985 in null and void and not binding upon the plaintiff as alleged in the plaint? OPP
2) Whether the plaintiff has no locus standi to file the present suit? OPD
3) Whether the suit is not maintainable in the present form? OPD
4) Whether there was any family settlement as alleged in para No. 4 of the P.O. of W.S., if so to what effect? OPD
5) Whether the suit is barred by res judicata? OPD
6) Whether the plaintiff is estopped from filing the present suit? OPD
7) Relief.
5. The parties led evidence in support of their case and on conclusion of the trial the suit of plaintiff Smt. Giano was decreed. Aggrieved by the judgment and decree of the trial Court, the defendant filed first appeal in the Court of Additional Distt. Judge, who affirmed the decision of their Court. Hence the present R.S.A. by the defendant.
I have heard Shri A.K. Ahluwalia, Advocate who appeared on behalf of the appellants and Shri Arun Jain, Advocate, who put appearance on behalf of the respondent and with their assistance, have gone through the record of this case.
6. From the above concised facts, the only point which survives for determination before me is whether the decree in suit No. 803 of 1985 was validly obtained by Singh Ram against Smt. Giano and the second point though not pleaded would be what is the effect of the non-registration of the said decree. Of course, it was for the plaintiff Smt. Giano to establish that the earlier decree obtained by Singh Ram was the result of fraud and impersonation yet in the present case it has been successfully proved by her that the defendant-appellant has played a huge fraud not only upon the Court but also upon the plaintiff when he had put a different person in the Court in securing the decree. It was very easy for the defendant to rebut the allegations of the plaintiff by producing the expert evidence in order to tally the thumb impression of the plaintiff Smt. Giano on the alleged written statement which has been filed in the earlier suit. The defendant himself could appear in the witness box in order to rebut the allegations. He could even examine that lawyer who allegedly gave appearance on behalf of Smt. Giano. All these steps have not been taken by the defendant with a purpose. He did not want to expose himself because of his guilty conscience. On the contrary, it stands proved not only from the statement of the plaintiff Smt. Giano but also from the statement of Som Nath Aggarwal P.W.3 Hand writing Expert who compared the questioned thumb impressions mark A.1 and A.2 on the alleged written statement dated 5.8.1985, mark A.3 the alleged statement made in Court by Smt. Giano, Mark. A.4 the thumb impression on the vakalatnama purported to have been executed by the plaintiff in favour of Shri S.C. Sharma, Advocate, mark-A.5 on the application dated 5.8.1985 with the standard thumb impressions Mark X.1 and X.2 which were taken in Court on 23.7.1984. The report of the Expert Ex.P.W. 2/11 shows that the disputed thumb impression do not tally with the standard thumb impression. I have already stated above, that defendant did not take trouble to examine the Handwriting expert in order to rebut the report Ex.P.W.2/11 submitted by the Expert Shri Som Nath Aggarwal, who was examined by the plaintiff. In this view of the matter it can be safely concluded that the earlier decree dated 12.8.1985 passed in Civil Suit No. 803 of 1985 was obtained by playing fraud upon the Court and the defendant put up a different person than that of Smt. Giano. The defendant himself has not appeared in the witness box to controvert the averments of the plaintiff and the law is well settled in that regard under section 114 of the Indian Evidence Act, that an adverse inference has to be drawn against such litigant who takes the risk by not appearing in the witness box in order to rebut the case of his opponent. The record of the trial Court further shows that Singh Ram, the present defendant filed two suits against Smt. Giano in respect of two parcels of land. Consent decrees were obtained in both the suits. In the second suit Smt. Giano has challenged the decree passed in Civil Suit No. 19 of 1985 titled Singh Ram v. Giano. That decree was passed on 14.1.1985 and this decree was already challenged by Smt. Giano by way of a suit. In these circumstances it will be highly improbable on the part of Smt. Giano to again suffer a consent decree dated 12.8.1985 which is the subject-matter of the present suit and this aspect of the case has been discussed in para No. 12 of the judgment of the first Appellate Court which is reproduced as follows:-
'Another glaring circumstance is that in fact two suits were filed by Singh Ram against Smt. Giano in respect of two separate parcels of land. Consent decrees were obtained in both the suits. The present appeal arose from the suit which challenged the decree passed in the second suit bearing No. 19 of 1985, titled Singh Ram v. Smt. Giano. The decree was passed in the said second suit, on 14.1.85 and it had already been challenged by Smt. Giano by way of a suit. How fallacious it is that even after that she allegedly suffered a consent decree on 12.8.1985. It is unbelievable that on one hand Smt. Giano will challenge the decree allegedly suffered by her of her consent and on the other hand she will again suffer a consent decree in yet another suit filed by same Singh Ram plaintiff regarding some other parcel of land. The appeal arising from the suit in which the other decree was challenged is also being decided along with this appeal by this Court today.'
The other point survives for determination is that the decree dated 12.8.1985 challenged by Smt. Giano was not registered and as such it did not convey any title in favour of Singh Ram. In this view of the matter I do not see any infirmity in the impugned judgment and decrees of the Courts below and seeing no merit in this appeal dismissed the same leaving the parties to bear their own costs.