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Bishni Devi & Ors v. Sher Singh - RSA-3321-2002 [2006] RD-P&H 654 (9 February 2006)


Case No. : R.S.A.No.3321 of 2002

Date of Decision : February 02, 2006.

Bishni Devi and others .... Appellants


Sher Singh .... Respondent

Coram : Hon'ble Mr.Justice Viney Mittal.

* * *

Present : Mr.S.S.Dinarpur, Advocate

for the appellants.

Mr.Narender Hooda, Advocate

for the respondent.


The legal representatives of plaintiff Kartara Ram are in appeal.

Kartara Ram had filed a suit for declaration claiming that the decree dated September 01, 1981 suffered by his father Nandu in favour of defendant no.1 Sher Singh, another son of Nandu, was illegal, bad and suffered on account of fraud and mis-representation and was not binding upon his rights. He claimed that he was the absolute owner in joint possession of the 1/3rd

share of all the suit property, after the death of his father Nandu.

The suit was contested by defendant no.1. He claimed that the decree in question had been duly and voluntarily suffered by Nandu in his favour. It was also claimed that Nandu died on September 28, 1988 and during his life time, had never challenged the decree in question. A plea of limitation was also taken by the defendant.

The trial court decreed the suit filed by the plaintiff. The matter was taken up in appeal by the defendant-Sher Singh. The learned first appellate court re-appraised the evidence and came to the conclusion that during his life time, Nandu never challenged the decree in question. The said decree was challenged for the first time by Kartara. It was held by the first appellate court that the suit filed by the plaintiff was not legally maintainable inasmuch as he has not filed the suit for joint possession.

R.S.A.No.3321 of 2002 : 2 :

Consequently, the appeal filed by the defendant was allowed and suit of the plaintiff was dismissed.

I have heard Shri S.S.Dinarpur, learned counsel appearing for the appellants and Shri Narender Hooda, learned counsel appearing for defendant-Sher Singh and with their assistance, have also gone through the record of the case.

The learned counsel appearing for the plaintiff-appellants says that in the plaint, the plaintiff had claimed the joint possession of the suit property and therefore, the observation made by the first appellate court can not be legally sustained.

On the other hand, Shri Narender Hooda, learned counsel appearing for the defendant-respondent has vehemently argued that the property in question was not shown to be ancestral or coparcenary property and further that during the life time of Nandu, the said decree was never challenged for a period of more than 7 years. Consequently, it has been argued by Shri Hooda that the decree has not been challenged on the basis of any fraud. In fact, the locus standi of the plaintiff has been challenged by the defendant during the course of arguments. The plea of limitation has been pressed to claim that the suit dated November 08, 1988 was challenged on April 21, 2001.

I have given my due consideration to the rival contentions of the learned counsel for both the parties.

Although the observation recorded by the court below that the suit for joint possession was not filed by the plaintiff, appears to be incorrect as it does appear from the perusal of the record that the plaintiff had sought for joint possession.

However, the arguments raised by Shri Hooda are well merited and deserve to be accepted.

It is apparent from the record of the case that the decree in question stood unchallenged for a period of more than 7 years. During his life time, Nandu never challenged the said decree. The property in question is also not shown to be joint coparcenary property and ancestral in nature in any manner.

R.S.A.No.3321 of 2002 : 3 :

In these circumstances, the very locus standi of the plaintiff to file the suit can not be accepted. Once the property is taken to be property of Nandu, then the plaintiff had no locus standi for any transfer made by him or any decree suffered by him. The suit filed after the expiry of more than 7 years, has to be held barred by limitation also.

No other point has been urged.

In view of the aforesaid observations, I do not find any merit in the present appeal, although the reasons given by the learned first appellate court are not really acceptable.

No question of law, much less any substantial question of law, arises in the present appeal.


February 02, 2006 ( VINEY MITTAL )

monika JUDGE


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