Dismissed

Harbhajan Kaur v. Balbir Singh and Anr.

Punjab & Haryana HC18 Jan 2011RSA/3801/2010

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court dismissed the appeal. The appellant challenged a 1993 consent decree obtained by her father, alleging fraud and impersonation due to his age and alleged inability to write. The court held the appellant failed to discharge the onus of proving her father did not appear personally.

What the court decided

AI extract

Harbhajan Kaur Vs Balbir Singh and Anr. — Property and Title | Punjab & Haryana HC (2011)

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RSA No.3801 of 2010 (O & M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.3801 of 2010 (O & M) Date of decision: 18.01.2011

Harbhajan Kaur

........Appellant

Versus

Balbir Singh and Another

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......Respondents

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CORAM: HON'BLE MR. JUSTICE L. N. MITTAL.

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Present: Mr.Gaurav Arora, Advocate for the appellant

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L. N. MITTAL, J.(ORAL)

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CM NO.11288-C of 2010

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For reasons mentioned in the application, delay of 40 days in re-filing the appeal is condoned.

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Main Appeal

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Harbhajan Kaur-Plaintiff, having failed in both the Courts below, is in second appeal.

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Appellant-plaintiff filed suit against her own brothers Balbir Singh and Bhajan Singh (respondents/defendants). Amrik singh was father of the parties. He died on 20.12.1994. Plaintiff and defendants are his legal heirs. The plaintiff went to Patwari for inheritance mutation of Amrik Singh relating to agricultural land in suit. Patwari told the plaintiff that mutation had already been sanctioned in favour of defendants on the basis of consent decree dated 16.07.1993 allegedly suffered by Amrik Singh in favour of defendants. Plaintiff has challenged the said decree in the suit alleging it to be illegal, null and void because Amrik Singh was aged

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RSA No.3801 of 2010 (O & M) -2-

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more than 80 years and was not in a position to move about and was not in sound state of mind. Amrik Singh used to affix signatures in Urdu language and he never thumb marked any document. It thus appeared that someone impersonated Amrik Singh in the Court for suffering decree dated 16.07.1993. The plaintiff accordingly sought declaration that judgment and decree dated 16.07.1993 relating to suit property are result of fraud and are illegal and inoperative against the plaintiff regarding the suit property. Plaintiff sought joint possession of the suit property to the extent of 1/3^rd share.

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Defendants contested the suit and broadly controverted the plaint allegations while admitting the relationship between the parties. It was pleaded that impugned consent decree dated 16.07.1993 is legal and valid and binding on the parties. Plaintiff has no right to the suit property. Various other pleas were also raised.

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Learned Civil Judge (Junior Division), Ludhiana vide judgment and decree dated 30.07.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ludhiana vide judgment and decree dated 20.11.2009. Feeling aggrieved, plaintiff has filed the instant second appeal.

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I have heard learned counsel for the appellant and perused the case file.

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Learned counsel for the appellant vehemently contended that even the defendants admitted that Amrik Singh used to affix signatures in Urdu whereas written statement filed in the suit in which consent decree dated 16.07.1993 was passed as well as statement made in the Court in that suit by Amrik Singh purport to bear his thumb impressions and, therefore, the said decree was not suffered by Amrik Singh himself and rather he was impersonated.

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RSA No.3801 of 2010 (O & M) -3-

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I have carefully considered the aforesaid contention, but the same cannot be accepted. There is practically no evidence led by the plaintiff to depict that the aforesaid thumb impressions on written statement and statement made in the Court in the previous suit are not the thumb impressions of Amrik Singh. Plaintiff has examined charanjit Singh PW-1, who stated about ill health of Amrik Singh and his treatment by him. The plaintiff herself appeared as PW-2 and broadly stated according to her version. However, undisputedly, plaintiff herself could not depose that Amrik Singh himself had not appeared in the previous suit to suffer the impugned consent decree because plaintiff was not present at that time. There is no other evidence to depict that Amrik Singh had not appeared in that suit. Thus initial onus lying on the plaintiff to depict that consent decree dated 16.07.1993 was not suffered by Amrik Singh or was obtained by impersonation has not been discharged by the plaintiff.

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Merely because Amrik Singh used to affix signatures in Urdu whereas written statement and statement in the previous suit bear his thumb impressions, it cannot be said, in the absence of any other material whatsoever, that the said thumb impressions are not of Amrik Singh. It would be highly hypothetical and conjectural to assume so merely on the basis of this contention. On the contrary, defendants have explained the reason for affixing thumb impressions. It has been stated that on account of old age, hands of Amrik Singh started trembling and, therefore, his thumb impressions were affixed on written statement and the statement made in the previous suit. The said explanation cannot be said to be unsatisfactory because it is plaintiff's own case that Amrik Singh was very old and did not have good phyical health.

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As regards statement of Charanjit Singh PW-1, the same stands impeached and has been rightly discarded by the Courts below. His bald, oral statement that he had treated Amrik Singh cannot be accepted in the

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RSA No.3801 of 2010 (O & M)

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absence of any document whatsoever. Moreover, this witness stated that he had treated Amrik Singh for leg injury suffered in accident. It would not disable Amrik Singh physically or mentally from suffering the consent decree in question. Moreover, no evidence has been led by the plaintiff to depict that Amrik Singh in fact met with any accident and suffered injuries for which Charanjit Singh PW-1 allegedly treated him. Defendants have examined Clerk of the Advocate who represented Amrik Singh in the previous suit. The said witness has supported the defendants' version that Amrik Singh had appeared and filed the written statement and also made statement in the Court in the previous suit and had thumb marked the same.

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Statement of Nachhattar Singh DW-3 further clinches the case against the plaintiff appellant. Nachhattar Singh DW-3 is Lambardar of the village. He had identified Amrik Singh in the Court in the previous suit when statement of Amrik Singh was recorded in that suit. Testimony of Nachhattar Singh DW-3 leaves no room for doubt that the said consent decree was suffered by Amrik Singh himself and he was not impersonated. Even statement of Nachhattar Singh was recorded in the previous suit regarding identification of Amrik Singh by him. Defendants have thus led positive evidence to depict that Amrik Singh himself suffered the consent decree in question and he was not impersonated for suffering the same. On the other hand, as already noticed hereinbefore, there is practically no evidence led by the plaintiff to depict that Amrik Singh himself had not suffered the consent decree in question and he was impersonated for suffering the same.

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Both the Courts below have recorded concurrent finding against the plaintiff-appellant. The said finding is based on proper appreciation of evidence and is supported by cogent reasons recorded by the Courts below. The said finding is not shown to be perverse or illegal in any

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RSA No.3801 of 2010 (O & M) -5-

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manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The concurrent view taken by the Courts below cannot be reversed merely because a different view may also be possible. In the instant case, however, the view taken by the Courts below is the only reasonable view that can be taken of the evidence on record.

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For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine.

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( L. N. MITTAL ) JUDGE

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18.01.2011. A.Kaundal

Harbhajan Kaur v. Balbir Singh and Anr.

Case brief

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Harbhajan Kaur v. Balbir Singh and Anr.

Case brief

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