In this second appeal, the High Court dismissed the challenge to a consent decree regarding property partition. The court rejected the appellant's claim of impersonation due to failure to prove adverse facts like thumb impression comparison and found the suit barred by limitation.
Second appeal dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
REGULAR SECOND APPEAL No.1115 of 2010
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA NO.1115 OF 2010 DATE OF DECISION: JANUARY 12, 2011
Santosh
.... Appellant
Versus
Om Parkash and others
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
PRESENT: Mr. Hari Om Attri, Advocate for the appellant.
L.N. MITTAL, J. (ORAL)
Plaintiff Santosh having failed in both the courts below is in second
appeal.
Case of the appellant-plaintiff is that her father Chotte Lal was owner in possession of 10 Kanals land and was also in possession of 18 Kanals 2 marlas land as Dholidhar. On his death on 18.12.1961, his said estate was inherited by his seven heirs i.e. widow Keshar Devi @ Chotti, two sons namely Om Parkash defendant No.1 and Sawermal defendant No.8 and four daughters i.e. Santosh-plaintiff, Geeta (predecessor of defendants No.2 to 7), Parmeshwari and Gayatri (not party to the suit). All of them inherited 1/7th share each vide mutation No.377 dated 20.08.1964. On the death of Chotti on 26.05.1984, her 1/7th share was inherited by her two sons, three daughters and heirs of pre-deceased daughter Geeta vide mutation No.896. Thus plaintiff got 1/6th share in the suit property and defendant Nos.2 to 7 also have 1/6th share therein.
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There is consent decree dated 31.05.1989 in suit No.76 in favour of Om Parkash-defendant No.1 herein regarding 1/6th share of the plaintiff and also regarding 1/6th share of defendant Nos.2 to 7. The plaintiff has challenged the said decree alleging that plaintiff and defendant Nos.2 to 7 did not appear in the said previous suit in which consent decree dated 31.05.1989 was passed and said consent decree was obtained by their impersonation. Defendant No.1 had no pre-existing right in the property of the plaintiff and, therefore, the said decree also required compulsory registration. Accordingly, the plaintiff sought declaration that she is owner/Dholidhar in possession of the suit land to the extent of 1/6th share and so also defendant Nos.2 to 7. Permanent injunction was also claimed.
Defendant Nos.2 to 8 admitted the claim of the plaintiff.
Defendant No.1 contested the suit and controverted the plaint allegations. It was pleaded that plaintiff has no right, title or interest in the suit land. She is neither owner/Dholidhar nor in possession thereof. Share of the plaintiff has already been transferred in favour of defendant No.1 by way of family settlement as affirmed by impugned consent decree dated 31.05.1989. The said decree is correct and legal. It was denied that same was obtained by impersonation or fraud. Plaintiff and defendants No.2 to 7 herein voluntarily appeared in that suit and consented to the claim of defendant No.1 who was plaintiff in that suit. The said consent decree did not create right for the first time in favour of defendant No.1 in the suit land because already oral family settlement had been entered into, according to which defendant No.1 who is real brother of the plaintiff became owner/Dholidhar of the suit land. Defendant Nos.2 to 7 also voluntarily suffered the said decree. Accordingly, defendant No.1 became owner/Dholidhar in possession of the suit land.
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Defendant Nos.9 to 11 also controverted the plaint allegations. They pleaded that they have purchased the suit land from defendant No.1 vide sale deed dated 12.04.1999 and are bonafide purchasers thereof for valuable consideration. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Rewari vide judgment and decree dated 16.11.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 11.11.2009. Feeling aggrieved, plaintiff has filed the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
The plaintiff had to prove that she and defendant Nos.2 to 7 were impersonated in the previous suit in which impugned consent decree dated 31.05.1989 was passed. However, both the courts below have found that the plaintiff has failed to prove the same. The plaintiff examined handwriting and finger print expert in support of her version. However, the said expert witness did not compare thumb impression of the plaintiff herein affixed on the statement made by her in the court in the previous suit admitting the claim of defendant No.1 who was plaintiff in that suit. Science of comparison of finger print is perfect science, but the plaintiff intentionally did not got her said thumb impression compared and, therefore, adverse presumption arises against the plaintiff. On the other hand, plaintiff's expert stated about her alleged signatures on the written statement filed in the previous suit admitting the claim of defendant No.1 who was plaintiff in that suit. However, science of handwriting comparison is not a perfect science. Ordinarily expert engaged by a party to compare handwriting and signatures gives opinion in favour of the
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said party. There is no explanation why the plaintiff inspite of having examined handwriting and finger print expert, did not get compared her alleged thumb impression on the statement made by her in the previous suit.
Faced with the aforesaid situation, learned counsel for the appellant contended that appellant had moved application for additional evidence in the lower appellate court to examine finger print expert to depict that thumb impression on statement of plaintiff herein, in the previous suit is not her thumb impression, but the said application for additional evidence was not decided by the lower appellate court. The contention cannot be accepted, because admittedly no such ground has even been raised in the grounds of appeal in the instant second appeal nor there is any material on record to substantiate the said contention. Even otherwise, no justification for leading additional evidence in first appeal is made out when the plaintiff had examined handwriting and finger print expert in the trial court, but did not got her aforesaid thumb impression compared, knowing fully well that her statement made in the court in the previous suit purported to bear her thumb impression.
It may also be added that defendant Nos.2 to 8 in their written statement admitted the claim of the plaintiff but none of them dared to enter the witness box to face cross-examination on behalf of defendant No.1. Consent decree dated 31.05.1989 has also been passed against defendant Nos.2 to 7 herein and the same was also alleged to be passed on fraud and impersonation. However, this version of the plaintiff as admitted by defendant Nos.2 to 7 in the written statement, can not be taken at face value, because defendant Nos.2 to 7 had to substantiate the same by leading evidence. Nonappearance of any of defendant Nos.2 to 7 as witness gives rise to further adverse presumption against the plaintiff and defendant Nos. 2 to 7. Even the
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plaintiff in her testimony expressed ignorance if defendant Nos.2 to 7 herein had appeared in the court in the previous suit to suffer the said consent decree in question. Thus practically there is no evidence to depict that defendant Nos.2 to 7 had also not appeared in the previous suit to suffer the said consent decree.
The plaintiff has also not proved the written statement which she filed in the previous suit in which consent decree was passed, nor she has examined the concerned Advocate Mr. Ram Avtar Sharma, who had prepared the said written statement at her instance. For this reason also, adverse inference arises against the plaintiff. The plaintiff should have examined Ram Avtar Sharma, Advocate as witness to depict that she had not engaged him in the previous suit.
In the witness box, the plaintiff also came out with version that she had delivered possession of her share to her brother defendant No.8. However, this is contrary to her pleadings because in the plaint she claimed herself to be in possession of her share. On the other hand, there is no entry in revenue record depicting possession of defendant No.8 over the share of the plaintiff.
There is another significant aspect of the matter. Time of filing of the suit chosen by the plaintiff is very significant. Consent decree in question, which is under challenge in this suit, was passed on 31.05.1989. The instant suit was filed on 03.06.1999 i.e. after 10 years. For 10 long years, the plaintiff remained silent. Here it is significant to notice that defendant No.1 had sold the suit land to defendant Nos.9 to 11 vide sale deed dated 12.04.1999. The suit was thus filed immediately after defendant No.1 had sold the suit land to defendant Nos.9 to 11 and not prior to it for about 10 years. It is not a mere
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coincidence that the suit was filed just after sale of suit land to defendant Nos.9 to 11.
The suit is also barred by limitation as it was filed 10 years after the passing of the consent decree in question, which has been challenged in the suit.
Learned counsel for the appellant contended that defendant No.1 has not stepped into the witness box. However, defendant No.1 is real brother of the plaintiff. After sale deed dated 12.04.1999, defendant No.1 was left with no interest in the suit or in the suit land and, therefore, adverse inference cannot be drawn against defendant Nos.9 to 11 for non-appearance of defendant No.1 in the witness box. On the other hand, defendant Nos.9 to 11 are bonafide purchasers of the suit land for consideration as the suit land stood recorded in the name of defendant No.1 and also there was decree dated 31.05.1989 in favour of defendant No.1.
Learned counsel for the appellant also contended that consent decree dated 31.05.1989 required compulsory registration. This contention is also devoid of merit. Claim of defendant No.1 in the previous suit instituted by him was that he had become owner of the share of plaintiff herein on the basis of family settlement. Plaintiff and defendant No.1 are real sister and brother. Consequently, there could be valid oral family settlement between them and consent decree passed on the basis of said oral family settlement did not require compulsory registration. It is common in this area that sisters transfer their share in their parental property in favour of their brothers. Same has happened in the instant case. However, after defendant No.1 sold the suit land to defendant Nos.9 to 11, the plaintiff filed the instant suit which is result of sheer dishonesty and may be in collusion with defendant No.1.
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For the reasons aforesaid, I find no merit in the instant appeal. Concurrent finding of the courts below against the plaintiff-appellant is fully justified by the evidence on record and is supported by cogent reasons and is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly appeal is dismissed in limine.
(L. N. MITTAL) JUDGE
12.01.2011 'raj'
3 issues framed by the court
Whether the appellant can prove impersonation regarding a consent decree despite failure to compare thumb impressions or call her advocate as a witness.
Whether the suit challenging the consent decree is barred by limitation due to a delay of ten years before filing.
Whether there is evidence to show that consent decree was passed on fraud or impersonation involving other heirs.
Santosh
Om Parkash
L. N. Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
