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Hardevi. v. Hukam & Ors. - RSA-5881-2003 [2006] RD-P&H 5205 (3 August 2006)



R.S.A. No.5881 of 2003

Date of decision: 31.7.2006


............... Appellant


Hukam and others.

................ Respondents

CORAM : Hon'ble Mr.Justice Mahesh Grover

Present: Shri C.B.Goel, Advocate for the appellant.

Shri Nitin Jain, Advocate for Shri Ashok Jindal, Advocate for respondent no.1.

Shri Sunil Polist, Advocate for the remaining respondents.


Mahesh Grover,J.

This is an appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 1.11.2003 passed by Additional District Judge, Panipat (hereinafter described as `the lower Appellate Court') whereby judgment and decree dated 12.2.2002 rendered by Civil Judge (Junior Division), Panipat (hereinafter referred to as `the trial Court') was set aside and the suit of the plaintiff-appellant was dismissed.

Briefly stated the facts are that appellant-Hardevi daughter of Risala filed a suit against respondent no.1-Hukam and Dharma (since deceased), now represented by his legal heirs, who are respondent nos. 2 to

5. The appellant sought a declaration that she was the owner in possession of agricultural land measuring 5 kanals and 1 marla as detialed in the head note of the plaint and that the respondents had got suffered a collusive decree by misrepresenting the facts to her on the pretext of getting a Power of Attorney to manage her land. The appellant being an illiterate lady believed them as respondent no.1 is her brother and Dharma was her uncle.

The respondents, by practising fraud, had managed to get a decree qua the land in question on 12.2.1994. Since it was represented to her that they would be managing her land, they gave her some money for one or two years and then stopped paying the same and when she demanded it, she was informed that she is no longer the owner of the land and the respondents have become owner of the land which led to the present proceedings.

The respondents pleaded that a family settlement had taken place and that they had become owner in possession of the land in question on the basis of the decree which was perfectly valid and that the said decree had been suffered by the appellant out of her own free will and her statement was also recorded to that effect before the competent Court. It was alleged that the appellant is married and is residing with her husband in village Bagru and no fraud was committed upon her.

On the pleadings of the parties, the following issues were framed by the trial Court:-

1. Whether the judgment and decree dated 12.2.1994 in civil suit no.91/94 passed by Sh.Laxman Sharma, HCS, Senior Sub Judge, Panipat is illegal,null and void and not binding upon the plaintiff?OPP

2. Whether the plaintiff is entitled for a decree for joint possession of agricultural land measuring 5K-1M being 1/9 share of land measuring 45K-6M as alleged?OPP

3. Whether the plaintiff is neither owner nor in possession of the suit land and the suit is not maintainable in the present form?OPD

4. Whether the suit is time barred?OPD

5. Whether the plaintiff has no locus standi to file the present suit?OPD

6. Whether the plaintiff has suppressed the true and material facts?OPD

7. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD

8. Relief. After perusing the evidence led by the parties, the trial Court decreed the suit of the appellant, but in appeal, the findings recorded by it were upset by the lower Appellate Court which has resulted in the present appeal having been filed by the appellant.

Shri C.B.Goel, learned counsel for the appellant contended that the land had devolved upon the parties from their common ancestor,namely, Kanhiya, who had two sons, namely, Risala and Dharma. He submitted that the appellant is the daughter of Risala, whereas respondent no.1-Hukama is his son. He further submitted that Dharma had died during the pendency of the proceedings before the Courts below and he was succeeded by his legal representatives, who are respondent nos. 2 to 5. Learned counsel argued that respondent no.1 along with the said Dharma had practised fraud upon the appellant and o the pretext of getting a Power of Attorney, had got a collusive decree in their favour instead and that she had no intention whatsoever to suffer the decree in their favour.

On the other hand, learned counsel for the respondents contended that the fact whether a fraud had been committed upon the appellant was a finding of fact which cannot be gone into a Regular Second Appeal and that no question of law arises in this appeal for adjudication by this Court.

I have thoughtfully considered the contentions of the learned counsel for the parties and have perused the record.

In my opinion, the appeal deserves to succeed for the reason that there is ample evidence o record to suggest that the appellant, who is an illiterate lady had been subjected to fraud and misrepresentation. The appellant had been married about 33 years back and was living away from the village where the land in question is situated. Respondent no.1, who was her brother and was looking after the rest of the land which he had inherited, was in a position to influence her to permit him to look after the land belonging to the appellant and on the pretext of getting a Power of Attorney, he got suffered a decree in his favour. It has come in the evidence of DW1- Hukam himself, who has stated that he was looking after the land of the appellant. He also stated that she had not engaged any lawyer and then the counsel, Shri D.S.Nehra, Advocate, who appeared as DW6, had stated that he did not get the written statement typed and that the written statement had come to him all prepared and ready and he had merely signed it and in the same breath, he stated that he had got it typed. It is apparent that the appellant had not engaged a lawyer of her own free volition. Had it been so, then the written statement would have been got typed in her presence. The lower Appellate Court had not adverted to the evidence to record a conclusive finding regarding fraud and misrepresentation. It has failed to address itself to the issue of fraud and rather, has proceeded on the premise that the parties to a decree should not be permitted to challenge the same.

The findings of the lower Appellate Court on this issue are as follows:- "In case, decrees are set aside in this fashion, every decree would be vulnerable and open to challenge at the instance of the party against whom the same was passed. The parties would be at liberty to come to the court; suffer the decree and later on approach the court to set it aside. The mere circumstance that Respondent no.1 was an illiterate woman was no ground to set aside the decree. In fact, it required some special facts which showed unequivocally that a fraud was played upon Respondent no.1. There are no such special facts on the record.

I am of the considered view that Respondent no.1 has not been able to make out any cause of fraud and the Trial Court was not justified in setting aside the decree dated 12.2.1994 passed in civil suit no.91/1994 on the basis of the bald testimony of Respondent no.1 that a fraud had been played upon her." No evidence was addressed by the lower Appellate Court and this, to my mind, has led to a perverse findings being recorded on the issue of fraud. The Supreme Court in the judgments reported as 2005(2) S.C.C.

500-Govindaraju Versus Mariamman and 2005(12) S.C.C. 270-Harjeet Singh and another Versus Amrik Singh and another, has held that the High Court is justified in interfering in the findings of the lower Courts in a Regular Second Appeal if the findings are perverse. The question of law in this appeal, therefore, would be that "if the findings recorded by the Courts below are perverse and contrary to the evidence on record, then whether there can be interference in a Regular Second Appeal or not?" In my opinion, the finding of the lower Appellate Court which was arrived at by ignoring the evidence on record was perverse and, therefore, deserves to be set aside.

Besides, the decree in question was also not registered and, therefore, it was not recognisable in the eyes of law as it involved transfer of immovable property of more than Rs.100/- in value. The Supreme Court in the judgment reported as AIR 1996 S.C. 196 -Bhoop Singh Versus Ram Singh Major and others, has held that such a decree is compulsorily registrable. Some of the observations made by their Lordships in that case are extracted below:-

"Sub-section (2) of Section 17 of the Act engrafts exceptions to the instruments covered only clauses (b) and of sub- section (1). Clause (vi) relates to any decree or order of a Court, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding. Sub- section (1) of Section 17 mandates that the instrument enumerated in Clauses (a) to (e) shall be registered compulsorily if the property to which they relate is immovable property value of which is Rs.100/- or upwards. The exception engrafted in Clause (vi) of Section 17(2) is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. The Court should therefore examine in each case whether the parties have pre- existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable."

As against this, learned counsel for the respondents relied upon a judgment of the Supreme Court reported as 2002(2) P.L.R. 512-Bachan Singh Versus Kartar Singh and others, to say that the decree which is based on a family settlement is not required to be registered. I am afraid, there was no evidence on record to suggest that any family settlement was arrived at between the appellant and the respondents. There is evidence on record to show that the appellant was married for the last 33 years and was staying away from the family. Even otherwise, the land in question which has devolved upon the successors from the common ancestor cannot be a part of the family settlement where sister transfers her share in favour of the brother as there is no pre-existing right qua the property of the sister in favour of the brother and vice a versa.

On the basis of the foregoing discussion, the appeal is allowed.

The judgment and decree passed by the lower Appellate Court is set aside and that of the trial Court is upheld.

July 31,2006 ( Mahesh Grover )

"SCM" Judge


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