VIKRAM AGGARWAL, J
1. This is plaintiffs second appeal against concurrent findings recorded by both the Courts below. For the sake of convenience, parties shall be referred as per their original status.
2. One Sis Ram son of Roshan was a resident of Village Selothi, Tehsil Palwal, District Faridabad (now Palwal itself is a District). He was the owner of 21/106 share in land measuring 53 kanals 6 marlas and 1/2 share in land measuring 42 kanals 18 marlas (fully described in the plaint) situated within the revenue estate of Village Selothi (hereinafter referred to as ‘the disputed land’). He was survived by his wife Risali and daughter Smt. Shanti. Sis Ram originally filed the suit in question. Upon his death, it was pursued by his wife Risali and upon the death of Risali, it was pursued by Smt. Shanti (the present appellant).
3. Kes Ram son of Ram Lal (proforma defendant No.3) was the nephew of Sis Ram as Ram Lal was the brother of Sis Ram. Defendants No.1 and 2 i.e. Rajinder and Devinder are sons of Kes Ram.
4. The suit was originally filed by Sis Ram seeking a declaration to the effect that the decree dated 24.11.1980 passed in Civil Suit No.524 of 1980 titled as Rajinder etc. Vs. Sis Ram passed by the Sub Judge Ist Class, Palwal and the mutation No.1028 dated 25.09.1983 entered on the basis of the decree were the outcome of fraud and were, therefore, null and void. A decree for permanent injunction restraining the defendants from interfering in possession of the plaintiff over the disputed land was also sought. In the alternative, a decree for joint possession was sought.
4.1 The case set up by Sis Ram was that Kes Ram who was a Clerk with an Advocate had got some papers of Vakalatnama and other blank papers thumb marked from him for conducting and filing litigation of the parties at Chandigarh and that Kes Ram used to conduct that litigation on behalf of Sis Ram also. He played a fraud upon Sis Ram and by impersonating him and by way of misrepresentation, he got a decree passed from the Court of the Sub Judge Ist Class, Palwal in favour of defendants No.1 and 2 and got the ownership rights of the disputed land transferred in favour of defendants No.1 and 2.
4.2 It was averred in the suit that Sis Ram had never appeared in the case to give any statement nor had he engaged any counsel. The written statement and Vakalatnama were got filed by Kes Ram by misusing the papers on which thumb impressions had been obtained. Kes Ram impersonated Sis Ram in the Court by presenting someone else on his behalf and got him falsely identified also. It was averred that the parties did not constitute a joint family. It was also averred that they were Gujars by caste and were governed by customs and under the circumstances, there could not be any family settlement. It was further averred that defendants No.1 and 2 were minors and legally they could not enter into any family settlement. It was averred that it had been wrongly stated that Sis Ram was without any issue and that in fact he had a daughter.
5. In their joint written statement, the defendants raised certain preliminary objections regarding the suit being bad for misjoinder of parties, the plaintiffs not being in possession of the disputed land, the plaintiffs being estopped from filing the suit etc. It was averred that the plaintiff Shanti Devi had previously instituted a suit against Sis Ram but later on withdrew the same by giving a statement that the suit land had already been transferred in favour of defendants No.1 and 2. Preliminary objections with regard to limitation were also raised. It was also averred that the plaintiffs had no right or title in the disputed land in view of the Will executed by Sis Ram in favour of defendants No.1 and 2. On merits, except for the relation between the parties, all other averments were denied. It was averred that Sis Ram had no son and had only one daughter namely Shanti Devi who was married. A family settlement was arrived at and out of love and affection Sis Ram voluntarily gave the disputed land to defendants No.1 and 2 and defendants No.1 and 2 had in fact rendered services to Sis Ram. It was denied that any fraud had been committed.
6. In the replication, averments made in the written statement were denied and those made in the plaint were reiterated.
7. From the pleadings of the parties, initially following issues were framed on 07.01.1984:-
“1. Whether the decree in Suit No.524 of 1980 Re Rajinder Etc Versus Sis Ram passed on 24.11.1980 has been obtained on the basis of fraud and is null and void OPP
2. Relief.”
8. Thereafter, a question arose regarding the legal representatives of Sis Ram. Shanti claimed herself to be the only heir on the basis of natural succession whereas defendants No.1 and 2 propounded a Will dated 03.09.1984 in their favour. Under the circumstances, on 12.12.1984, the following issues were framed:-
“1. Who are the legal representatives of the deceased plaintiff OPP”
9. Subsequently, vide order dated 07.09.1987, the following issues were framed:-
“1. Who are the LRs of Sis Ram deceased OPP
2. Whether the Will dated 3.9.1984 was validly executed by Sis Ram in favour of defendants No.1 and 2 OPP
3. Whether the plaintiffs are estopped to bring the present suit by their act and conduct OPD
4. Whether the suit is not filed within limitation OPD
5. Relief.”
10. Ultimately, the trial Court settled the issues as under:-
“1. Who are the LRs of Sis Ram deceased OPP
2. Whether the Will dated 3.9.1984 was validly executed by Sis Ram in favour of Defendants No.1 and 2 OPP
3. Whether the plaintiffs are estopped to bring the present suit by their act and conduct OPD
4. Whether the suit is not filed within limitation OPD
5. Whether the decree in Suit No.524 of 1980 Re Rajinder etc. Versus Sis Ram passed on 24.11.1980 has been obtained on the basis of fraud and is null and void OPP
6. Relief.”
11. The suit was dismissed by the trial Court. Issues No.1 and 2 were decided in favour of the plaintiff-Shanti Devi and it was held that the Will dated 03.09.1984 was shrouded by suspicious circumstances. On issue No.5 which was with regard to the decree, it was held that the plaintiff had failed to prove that the decree was illegal or that the same had been obtained by fraud.
12. The Court of Additional District Judge, Faridabad upheld the findings of the trial Court leading to the filing of the present second appeal.
13. I have heard learned counsel for the parties.
14. Learned counsel for the plaintiff contended that both the Courts below gravely erred in non-suiting the plaintiff. Learned counsel submitted that both the Courts below decided the issue of Will in favour of the plaintiff which in itself would show the intention of the defendants. Learned counsel submitted that there would be no reason for Sis Ram to suffer a decree in favour of defendants No.1 and 2 once his own daughter was there. Learned counsel referred to the report of the expert Ex.PW3/10 and the report Ex.PW3/18. Learned counsel submitted that admittedly Kes Ram was handling litigation for Sis Ram and that he, therefore, obtained thumb impressions of Sis Ram on Vakalatnama and other papers and misused the same. Learned counsel referred to the pleadings as also the evidence on record including the evidence of the experts and their reports. Reference was also made to the statement of DW1 who was the fingerprint expert produced by the defendants. Learned counsel referred to the judgments of the Courts below. It was submitted that the thumb impressions on the documents were admitted because it was the own case of the plaintiff that the same had been mis-utilized by Sis Ram. Learned counsel submitted that the Courts did not consider that the alleged statement given in the Court was by way of impersonation. Reference was made to the report of the expert wherein it was stated that the thumb impressions on the statement were not that of Sis Ram. It was also contended that it had come on record that Sarupa was known to Kes Ram. Learned counsel submitted that the Courts below erred in stating that no details were given as to who had impersonated Sis Ram whereas the name of Sarupa was disclosed in the replication. Learned counsel contended that even otherwise, it was not necessary to spell out as to who had impersonated Sis Ram as the plaintiff was not expected to know the same. Specific reference was made to the reports of experts Ex.PW3/10 and Ex.PW3/18. It was finally submitted that the previous suit had been filed by Shanti which she withdrew and the same could not be considered as res-judicata.
15. On the other hand, learned counsel for the defendants submitted that there is no illegality or infirmity in the findings recorded by the Courts below. Reference was made to the earlier suit filed by Smt. Shanti Devi which she had filed in 06.08.1981 and had withdrawn on 25.08.1982 after suffering a statement that she was withdrawing the suit since Sis Ram had transferred the land in favour of defendants No.1 and 2. After that the present suit was filed by Sis Ram on 22.11.1983. Learned counsel submitted that the very fact that Sis Ram filed the suit on the very last day of limitation shows that he was having knowledge of the decree. Learned counsel also submitted that there was no finding that the decree had been obtained by fraud or by forgery and only the finding was that the Will was shrouded by suspicious circumstances.
16. I have considered the submissions made by learned counsel for the parties and have also perused the record.
17. Before adverting to the merits of the appeal, it would be essential to observe that that the requirement of framing of a substantial question of law in second appeal in terms of the provisions of Section 100 of the Code of Civil Procedure and as had been laid down in various pronouncements by the Hon’ble Apex Court including Hero Vinoth (minor) versus Seshammal 2006 (5) SCC 545, [LQ/SC/2006/449] was subsequently held to be not there by the Hon’ble Apex Court. It was held that in the States of Punjab and Haryana, it is the provisions of the Punjab Courts Act, 1918 which would be applicable and, therefore, Section 100 CPC would not hold the field and, accordingly, there would be no requirement of framing substantial question of law in second appeal. With regard to the States of Punjab and Haryana, it was so held in Kirodi (Since Deceased) through his Lr. Versus Ram Parkash & Ors. 2019 (3) R.C.R. (Civil) and Satyender and Ors. Versus Saroj and Ors. 2022 (12) Scale 92 respectively.
18. Reverting to the issue in hand, the relationship between the parties is admitted. It is admitted that Kes Ram (proforma defendant No.3) was the nephew of Sisram, being his real brother Ram Lal’s son. Defendants No.1 and 2 i.e. Rajinder and Devinder are sons of Kes Ram. A decree dated 24.11.1980 was passed by the Court of Sub Judge Ist Class, Palwal in a suit titled as Rajinder etc. Vs. Sis Ram with regard to the disputed land. A Will dated 03.09.1984 was also set up by the defendants alleging that the same had been executed by Sis Ram in favour of defendants No.1 and 2 with regard to the disputed land. Certain dates would be important to be noticed. The decree, as noticed above was passed on 24.11.1980. The Will was dated 03.09.1984 and was registered on 01.10.1984. Sis Ram expired on 12.09.1984 and the present suit was filed on 23.11.1983. It, therefore, means that the Will was executed during the pendency of the suit.
19. In so far as the Will is concerned, both Courts returned concurrent findings that the Will had not been executed by Sis Ram. The said findings have not been challenged by the defendants nor has any cross appeal been filed. Even during the course of arguments, the issue was not raised.
20. The issue which, therefore, remains before this Court is the issue of the decree dated 24.11.1980. This suit was filed by defendants No.1 and 2. The judgment is on record as Ex.P8. Written statement admitting the claim was filed. A statement on oath was also given, a certified copy of which is on record as Ex.P-10. It is duly stated to have been thumb marked by Sis Ram in the presence of the Presiding Officer of the Court. The contention that someone else had been produced in the Court to give the statement is unacceptable. First of all, there is a sanctity and truthfulness attached to the Court proceedings. Even if that part is ignored to some extent, the Court then has to consider the reports of the experts. It is well known that experts tend to give statements in favour of the parties who engage them. Under the circumstances, the experts engaged by both sides gave reports in favour of their own clients. No doubt, in the replication it was mentioned that one Sarupa was produced in the Court who impersonated Sis Ram but it has not been disclosed as to who this Sarupa was and what was his interest in impersonating as Sis Ram. Efforts could have been made to examine the said Sarupa. It has to be borne in mind that fraud has to be pleaded and has to be proved by leading cogent evidence. A fraud having been played upon the Court has to be proved even by more cogent evidence.
21. No doubt, it is for the Court to sift and weigh the evidence. Once a decree has been passed by a Court and then there are allegations of fraud which are not being proved by clinching evidence, the Court has to rely upon the other evidence on record. The other evidence here would be the suit filed by the plaintiff-Shanti against her own father Sis Ram. This aspect is very important and has rightly been noticed by both the Courts below. Smt. Shanti filed a suit on 06.08.1981 against Sis Ram (Ex.R6) seeking a declaration that she was the owner in possession of the disputed land (the land described in the said plaint was the same as described in the present suit). On 25.08.1982 (Ex.R5) the said suit was withdrawn. The order mentions that in view of the statement of counsel for the plaintiff, the suit was being dismissed as withdrawn. The statement was made on the basis of an application (Ex.R8) moved by the present plaintiff Smt. Shanti. It was an application with regard to a compromise having been arrived at between the parties. It was mentioned in the application (Ex.R8) that a compromise had been arrived at between the parties because her mother had told her that her father Sis Ram had transferred the disputed land in the name of Rajinder and Devinder and that they only were serving him. This statement is the clinching evidence which goes against the plaintiff. This withdrawal of the suit was never challenged by the plaintiff. It is not the case of the plaintiff that the said statement was obtained by fraud etc. It also mentions that Rajinder and Devinder were serving Sis Ram. No doubt, this may not act as res-judicata, as has been argued by learned counsel representing the appellant but it does go on to show that the decree dated 24.11.1980 had not been obtained by fraud. What were the terms of compromise is not known. However, this statement would definitely act against the plaintiff as has been rightly observed by both the Courts below.
22. There is another aspect of the matter. Sis Ram did not have any son. In those days, it was quite common that land would go to males of the family. In the absence of a son, many times, the nephews would inherit the land. It cannot, therefore, be said that why in preference to his wife and daughter, Sis Ram transferred the land to his nephews.
23. In view of the aforesaid discussion, this Court is of the considered opinion that the findings recorded by both the Courts on the issue of the decree dated 24.11.1980 are not liable to be interfered with.
24. In so far as the issue of the suit having been filed just before the expiry of the period of limitation is concerned, the same is also devoid of merit as a suit, as long as it is filed within the period of limitation, would not be called into question on account of when it is filed. The question only would be whether it was barred by limitation or not which it is not.
25. In view of the aforementioned facts and circumstances, no fault can be found with the concurrent findings recorded by the trial Court as also the first Appellate Court. As a consequence thereof, I find no merit in the present appeal and the same is accordingly dismissed.
