Appellant appealed against a judgment and decree dismissing a suit for declaration that a 1987 decree was obtained by fraud. The High Court dismissed the appeal, noting the absence of the original judgment, decree, and plaint on record to verify allegations regarding the unregistered decree and alleged pre-existing rights.
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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh
RSA No.3675 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3675 of 2013 (O&M) Date of decision:27.05.2014
Sarwan Singh
...Appellant
Versus
Ram Sarup and others
...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. P.S.Sikand, Advocate, for the appellant. *****
RAKESH KUMAR JAIN, J .
The plaintiff is in appeal against the judgment and decree of both the Courts below by which suit filed for declaration that the judgment and decree passed in Civil Suit No.96 dated 23.01.1987 decided on 01.04.1987 in favour of Ram Sarup-defendant no.1 suffered by Mansha Singh, father of the parties, and mutation No.538 dated 29.05.1995 sanctioned on the basis thereof, are illegal having been obtained by fraud and the land being of the value of more than `100/-, the decree requires registration and also prayed for consequential relief of joint possession and for permanent injunction to restrain defendant no.1 from alienating or transferring the suit property.
The case set up by the plaintiff is that Mansha Singh was owner of the suit property which was his self-acquired property. He was about 104 years of age and taking undue advantage of his old age, defendant no.1 obtained decree dated 01.04.1987 which was compulsorily required to be
RSA No.3675 of 2013 (O&M)
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registered being of the value of more than `100/- and created new rights upon defendant no.1.
On the other hand, the defendants did not deny that Mansha Singh was the father of the parties but he was not 104 years of age and was of 90 years at the time of his death. At the time of decree, he was 87 years of age and was healthy and competent to suffer a decree. It was selfacquired property of Mansha Singh who himself filed written statement and gave statement admitting the case of the defendants, but it was denied that defendant no.1 played fraud upon Mansha Singh as no particulars of alleged fraud have been mentioned by the plaintiffs and since the property was selfacquired property of Mansa Singh, therefore, defendant no.1 had a right in the property by birth as a co-parcener. It is also alleged that Mansha Singh died on 11.12.1990 and defendant no.1 is the owner in possession of the suit property since 1987. Gurdial Singh-plaintiff no.1 had separated from Mansha Singh about 40 years back when the parties were living at village Rawalao, therefore, Mansa Singh settled at village Tangail and lived with defendant no.2. Plaintiff no.2 used to live separately from Mansha Singh in District Shahjhanpur (U.P.) and is having agricultural land there. It is also alleged that the land in dispute was mortgaged on 25.05.1974 through registered mortgage deed and it was got redeemed by Smt. Angrej Kaur, wife of defendant no.1, on 30.05.1984. Thereafter, Mansha Singh mortgaged another land which was also got redeemed by son of defendant no.1 on 28.09.1994, after the death of Mansha Singh.
The plaintiffs filed replication reiterating the averments made
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RSA No.3675 of 2013 (O&M)
in the plaint and denying the averments made in the written statement. It was also stated that Mansa Singh lived with plaintiff no.1 who had performed all his rituals after his death and is not aware of the mortgage or redemption, as alleged by the defendants.
From the pleadings of the parties, following issues were framed by the Trial Court:-
“1. Whether the judgment and decree dated 01.04.1987 in case titled as Ram Sarup vs. Mansha Singh, Civil Suit No.96 dated 23.01.1987 is null and void and liable to be set-aside, as alleged in the plaint?OPP.
RSA No.3675 of 2013 (O&M)
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vinod kumar 2014.06.24 12:46 I attest to the accuracy and integrity of this document Chandigarh
8. Relief.”
Issue nos.1 and 2 were decided in favour of the plaintiffs by the Trial Court and suit was dismissed. Similarly, the Appellate Court also dismissed the appeal.
Learned counsel for the appellant has argued that the Courts below have erred in not appreciating the fact that decree was suffered by Mansha Singh in favour of defendant no.1 of the property of more than `100/-, therefore, it was required to be registered.
Mansha Singh suffered the decree on 01.04.1987 and died on 11.12.1990, whereas the suit has been filed on 22.09.2000. During his life time, Mansa Singh did not challenge the decree. On 21.02.2014, this Court had directed the appellants to place on record judgment and decree dated 01.04.1987 along with plaint and written statement. Counsel for the appellant even obtained an adjournment on 12.05.2014 to comply with the said order, but when the case was argued, he candidly stated at the bar that the plaint and the written statement are not available.
In such a situation where the plaintiff is challenging the decree suffered in favour of the defendant by consent, the averments made in the plaint are most important to be noticed because if the averments suggest that the plaintiff has a pre-existing right, i.e. on the basis of some family settlement, and the suit is filed subsequently for declaration of the said right, then the said decree would not come within the purview of a decree in presentie for the purpose of registration.
In the absence of material on record, the plaintiffs cannot
RSA No.3675 of 2013 (O&M)
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challenge the decree of both the Courts below on the ground that the decree suffered by Mansha Singh, being unregistered, cannot be enured in favour of defendant no.1.
In view of the above, I do not find any merit in the present appeal and hence, the same is hereby dismissed.
May 27, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE
1 issue framed by the court
Whether the unregistered decree suffered by Mansha Singh in 1987 can be challenged by the appellants in a suit filed in 2000 on the ground that it required registration?
Sarwan Singh
Ram Sarup
Rakesh Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
