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SURESH KUMAR v. MAKTUL KAUR & Ors - RSA-1746-2005  RD-P&H 23 (25 May 2005)
Suresh Kumar vs. Smt.Maktul Kaur and ors.
Present:- Mr.Jai Vir Yadav, Advocate,
for the appellant.
Ashutosh Mohunta, J,
Defendant Suresh Kumar has filed this appeal to challenge the judgment and decree dated 4.9.2003 passed by the Additional Civil Judge (Senior Division), Rewari, decreeing the suit for declaration and permanent injunction filed by Smt.Maktul Kaur in her favour, as well as the judgment and decree dated 5.3.2005 passed by the Additional District Judge, Rewari, whereby the appeal filed by defendant Suresh Kumar has been dismissed.
Primary contention of the learned counsel for the appellant is that both the Courts below erred in setting aside the judgment and decree dated 9.2.1998 on the ground that the same had been obtained by the appellant by fraud and misrepresentation when Smt.Maktul Kaur herself admitted that she had appeared in the Court and made a statement. It has further been contended by the learned counsel that it had been specifically admitted by the plaintiff-respondent that she had filed the written statement (Ex.D.W.3/1) in the previous suit, wherein R.S.A.No.1746 of 2005 2
she had pleaded with regard to the family settlement. The counsel contends that in spite of the admissions made by the plaintiff-respondent, both the Courts below have passed by the impugned judgments and decrees setting aside the judgment and decree dated 9.2.1998.
I do not find merit in the contentions raised by the learned counsel for the appellant. The following sole question arises for consideration in the present appeal:-
Whether or not the judgment and decree dated 9.2.1998 has been obtained by fraud and misrepresentation and that Smt.Maktul Kaur had suffered the said decree out of her free- will and in sound disposing mind?
In the plaint (Ex.PW3/1) of the previous suit, Suresh Kumar defendant had pleaded that the suit land had been given to him in a verbal family settlement during the life time of Mittar Sain and also that he had been adopted by Smt.Maktul Kaur and her husband Mittar Sain. However, in the written statement filed in the present suit, Suresh Kumar defendant did not even refer a word about his adoption by Mittar Sain and Smt.Maktul Kaur. Had he been adopted by Mittar Sain and Smt.Maktul Kaur, he would have taken the plea with regard to adoption in the written statement filed by him in the present suit as well. When the adoption had been taken place and what ceremonies were performed at the time of adoption, R.S.A.No.1746 of 2005 3
there is no mention about the same in the plaint filed by him in the previous suit.
Not only this, in this plaint (Ex.PW3/1) of the previous suit, Suresh Kumar had referred to himself as the son of Jaswant Singh and not as the adopted son of Mittar Sain. Similarly, with regard to family settlement, no details about the family settlement have been given either in the plaint filed in the previous suit or in the written statement filed by him in the present suit. When the family settlement had taken place? What was the approximate time? In whose presence the family settlement was made? There is no details about the same. Still further, Suresh Kumar defendant has not adduced any evidence to support the version of family settlement. Two witnesses, namely, Smt.Krishna (D.W.1), and Smt.Sushila (D.W.4) were examined by him. During their testimony neither of them stated even a single word about any family settlement having taken place at any time, whatsoever. Smt.Sushila (D.W.4) was even quite candid in her admission made in her cross-examination that no family settlement between Mittar Sain and Suresh had ever taken place nor Mittar Sain had given his property to him. Had any family settlement taken place during the life time of Mittar Sain and thereby Suresh Kumar had become owner of the suit property, then he might have challenged the mutations of inheritance Exhibits P5 and P6, which were R.S.A.No.1746 of 2005 4
sanctioned in favour of Smt.Maktul Kaur (widow) and the three daughters of Mittar Sain deceased. He did not do so and this fact has been admitted by him in his cross-examination while appearing as D.W.2.
The deposition made by plaintiff Smt.Maktul Kaur appeals to reason that about three years prior to the filing of the present suit, she had fallen ill and was brought to Rewari by Suresh Kumar defendant on the pretext of providing treatment and her thumb impressions were taken by Suresh on blank papers. At that time she was not in sound disposing mind. Though she has admitted that she had appeared in the Court in the previous suit filed by Suresh Kumar, but she clarified that her thumb impressions were taken forcibly. Smt.Subhash (P.W.4) has supported her case and she has denied that any family settlement had ever taken place. Smt.Krishna D.W., who has been examined by Suresh Kumar in support of his case, has admitted that at the time of the decree passed in the previous suit filed by Suresh Kumar, her mother Smt.Maktul Kaur was 75 years old. She also admitted the fact that her mother was hard of hearing and unable to see. In view of all this, possibility cannot be ruled out that Smt.Maktul Kaur had been made to appear in the Court against her free-will and her thumb impressions were taken by mis-stating the facts to her, particularly when she had not engaged a R.S.A.No.1746 of 2005 5
lawyer to represent her. Rather the lawyer, who had been engaged by Suresh, also represented her and had prepared the written statement on her behalf. It is the admitted position that Shri Rohtash, Advocate, who had been engaged by Suresh Kumar, had also appeared on behalf of Smt.Maktul Kaur and had prepared her written statement. The fee of the lawyer was paid by Suresh Kumar himself and no fee was paid by Smt.Maktul to him.
In view of the peculiar facts of the case as narrated above, I am of the considered opinion that judgment and decree dated 9.2.1998 had been obtained by Suresh Kumar by playing fraud and mis-stating the facts to Smt.Maktul Kaur. Both the Courts below have given a very sound reasons for declaring the judgment and decree dated 9.2.1998 as null and void qua the share of Smt.Maktul Kaur and decreeing her suit for permanent injunction.
In the light of the above, there is no merit in the present appeal. It is, accordingly, dismissed in limine.
May 10, 2005. ( Ashutosh Mohunta )
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