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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

213 RSA-3032-2008 (O&M)

Date of decision: 08.12.2025

Ram Sarup through his LRs ...Appellant(s)

Vs.

Bharpai through her LR ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

Present:-Mr. Akshay Kumar Goel, Advocate for the appellant.

Mr. Mohan Singla, Advocate for the respondent.

***

NIDHI GUPTA, J.

Present Second Appeal has been filed by the defendant

against the judgment of reversal dated 13.08.2008 passed by the first

Appellate Court; whereby Civil Appeal filed by the plaintiff/respondent

herein has been allowed, and suit of the plaintiff has been decreed.

2. Brief facts of the case are that the respondent/plaintiff had

filed the present suit seeking declaration as owner in possession of the

suit property as described in the plaint; and a declaration that the

judgment and decree dated 05.06.1996 passed by the learned additional

Civil Judge (Senior Division), Bhiwani in Civil Suit No. 209 of 1996 titled as

Ram Sarup vs. Bharpai in respect of the suit land declaring the defendant

as owner in possession of the suit land; and the mutation No. 1016 dated

29.06.1996 on the basis of the aforesaid judgment and decree, are illegal,

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null and void being fraudulent; and for permanent injunction (prohibitory)

restraining the defendant from alienating the suit land.

3. The facts as pleaded in the plaint were that the plaintiff was

owner in possession of the suit land described in the plaint; that the

appellant/defendant has no right, title or interest whatsoever in the suit

property; that the judgment and decree dated 05.06.1996 was obtained

by the defendant by fraudulent means; and the mutation No. 1016 dated

29.06.1996 is against law, facts and fraudulent and not binding on the

rights of the plaintiff and is liable to be set aside and the plaintiff is liable

to be incorporated as owner in possession of the land in dispute in place

of the defendant in the revenue record.

4. It was pleaded by the plaintiff that her mother Lachmi was

owner in possession of the land in dispute which was her ancestral

property inherited from her forefather. Upon the death of Lachmi, Plaintiff

and her 2 sisters inherited the land in equal shares; and Plaintiff was duly

incorporated as owner in possession of 1/6th share. Defendant was also

co-owner in the land in dispute to the extent of 1/6th share. Defendant

and his 2 brothers had been cultivating the share of the plaintiff and her

sisters. Defendant had misrepresented to the plaintiff that her thumb

impressions are required for executing the Power of Attorney in respect of

the suit land. It was pleaded that defendant had thus, fraudulently

obtained various thumb impressions of plaintiff on some documents on

05.06.1996. When the plaintiff had applied for copy of the Jamabandi for

the year 1994-95 as the plaintiff intended to sell the land, plaintiff had

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come to know about the judgment and decree dated 05.06.1996.

Accordingly, present suit was filed on 12.03.2001 on the ground defendant

had played fraud and undue influence on the plaintiff and obtained her

thumb impressions by misrepresenting facts.

5. Upon appraisal of the pleadings and the evidence led by the

parties, the learned Civil Judge (Junior Division), Bhiwani had dismissed

the suit of the plaintiff vide judgment and decree dated 10.11.2003

holding the same to be time barred; and on the ground that the plaintiff

had failed to prove that the defendant had played fraud upon her.

However, the Civil Appeal filed by the plaintiff was allowed by the learned

Additional District Judge-III, Bhiwani vide judgment and decree dated

13.08.2008 holding that the decree dated 05.06.1996 was obtained by

playing fraud and the same is not binding upon the rights of the plaintiff.

Learned First Appellate Court has also held that the suit was filed within

limitation. Hence, the present second appeal by the defendant.

6. It is inter alia submitted by learned counsel for the appellant

that first and foremost, the Civil Suit filed by the respondent/plaintiff was

not maintainable in terms of Order 23 Rule 3-A CPC (Added w.e.f.

01.02.1977), as per which no independent suit can be filed for setting

aside a Compromise Decree on the ground that the compromise was not

lawful. It is contended that a Consent Decree operates as an estoppel and

is valid and binding unless it is set aside by the Court which passed the

Consent Decree, by an order on an application to be filed under the

proviso of Rule 3 Order 23. Accordingly, the only remedy available to a

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party to a Consent Decree to avoid such Consent Decree, is to approach

the Court which recorded the compromise and passed a Decree in terms

of it and establish that there was no compromise. In the event the Court

which recorded the compromise will itself consider and decide the

question as to whether there was a valid compromise or not. This is so

because a Consent Decree is nothing but contract between parties

superimposed with the seal of approval of the Court. The validity of a

Consent Decree depends wholly on the validity of the agreement or

compromise on which it is made. In support, learned counsel for the

appellant places reliance upon a judgment passed by Hon’ble Supreme

Court in Pushpa Devi Bhagat (dead) through LR. Sadhna Rai (SMT) vs.

Rajinder Singh and others (2006) 5 Supreme Court Cases 566; and in

Manjunath Tirakappa Malagi v. Gurusiddappa Tirakappa Malagi (Dead),

(SC): Law Finder Doc Id # 2721628.

7. It is further submitted that although the plaintiff has alleged

fraud however, the First Appellate Court has failed to take note of the fact

that the plaintiff has miserably failed to prove the alleged fraud by the

appellant. It is contended that the allegations levelled by the plaintiff have

not been substantiated by her oral testimony on oath as not a single word

was uttered by the plaintiff which could prove her case.

8. Learned counsel for the appellant further submits that the

Ld. Appellate Court had erred in not appreciating the fact that the

appellant is cousin of the plaintiff/respondent. This fact had been

admitted by the plaintiff in Para no. 1 of her plaint. Their fathers were real

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brothers and were sons of Sohala (grand father of the parties to the suit).

It is also admitted by her that all were co-sharers. So, the land was

transferred in the name of the appellant by the respondent because she

was not having any issue and the property devolved upon her from her

parental side and it was decided between Bhai-Biradari that the suit land

should be given and settled in his favour to avoid any possible future

dispute. So, six months after the settlement, the suit was filed as the

name of the appellant was not incorporated in the revenue record. Thus,

the parties to the suit having common ancestry settled the share. It is

argued that a semblance of relations, love and affection, is sufficient to

sustain a family settlement.

9. It is further submitted by learned counsel for the appellant

that the Ld. Appellate Court has wrongly held that the plaintiff has filed

the suit within limitation from the date of her knowledge. In fact, she was

well aware of the judgment and decree dated 05.06.1996 passed by the

Ld. Additional Civil Judge (Sr. Divn.) Bhiwani. Even Advocate Sh. B.S.

Boora/DW3, made a statement that on 05.06.1996, he had made a

statement on behalf of Ram Sarup (defendant in the instant case) and

thereafter the Ld. Court decreed the suit. This witness further stated that

he got recorded his statement after the statement of Smt. Bharpai

(plaintiff in the instant case) was recorded. The deposition of this witness

clearly established the fact that the plaintiff was well aware of the

judgment and decree dated 05.06.1996, from the date it was passed. So,

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in these circumstances, the suit filed by the plaintiff was beyond

limitation.

10. It is accordingly prayed that the present Appeal be allowed;

and the impugned judgment and decree dated 13.08.2008 passed by

learned Additional District Judge-III, Bhiwani be set aside; and the

judgment and decree dated 10.11.2003 passed by Civil Judge (Junior

Division), Bhiwani be restored and the suit of the plaintiff be ordered to be

dismissed.

11. Per contra, learned counsel for respondent/plaintiff submits

that the argument/defence of maintainability is not available to the

appellant as he has not raised this plea heretofore. Learned counsel also

points out that the issue No.4 was framed by the learned Trial Court in

respect of maintainability which was disposed of by the learned Trial

Court as “not pressed” by the defendant. It is contended that therefore,

appellant cannot, at this stage, raise argument of maintainability.

12. Learned counsel further submits that the learned First

Appellate Court has given cogent findings that the appellant had played

fraud upon the plaintiff. In this regard, it is submitted that the findings

returned by the learned First Appellate Court in paras 13 and 16 of its

judgment dated 13.08.2008 amply establish beyond doubt that the

appellant had played fraud upon the plaintiff. He accordingly prays that

the present Appeal be dismissed and the suit of the plaintiff be decreed.

13. No other argument is made on behalf of ld. counsel for the

parties. I have heard ld. counsel and perused the case file alongwith Lower

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Court Records in minute detail. I have given my thoughtful consideration

to the rival submissions advanced on behalf of both the parties. I find

merit in the submissions made on behalf of the appellant.

Order 23 Rule 3A CPC reads as under: –

“3. Compromise of suit. - Where it is proved to the

satisfaction of the Court that a suit has been adjusted wholly

or in part by any lawful agreement or compromise [in writing

and signed by the parties] or where the defendant satisfied

the plaintiff in respect of the whole or any part of the subject-

matter of the suit, the Court shall order such agreement,

compromise satisfaction to be recorded, and shall pass a

decree is accordance therewith [so far as it relates to the

parties to the suit, whether or not the subject-matter of the

agreement, compromise or satisfaction is the same as the

subject-matter of the suit:]

[Provided that where it is alleged by one party and denied by

the other that an adjustment or satisfaction has been arrived

at, the Court shall decide the question; but not adjournment

shall be granted for the purpose of deciding the question,

unless the Court, for reasons to be recorded, thinks fit to

grant such adjournment.]

3A . Bar to suit. - No suit shall lie to set aside a decree on the

ground that the compromise on which the decree is based

was not lawful.” (Emphasis added)

14. A bare reading of the above shows that in terms of the said

provision, the recourse open to the plaintiff was to file an application for

recall of Consent Decree. A separate independent fresh civil suit for

setting aside the Consent Decree, was clearly not maintainable. In this

regard, learned counsel for the appellant has relied upon the judgment of

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Hon’ble Supreme Court in Pushpa Devi Bhagat (supra), which has dealt

with every aspect of the issue comprehensively and in detail. Relevant

paras 14 to 17 of the said judgment are reproduced hereunder:-

“14. The judgment of the High Court is challenged by

the appellant (the second defendant's legal representative) in

this appeal. Learned counsel for the appellant contended that

the High Court having held that the case did not fall under

the first part of Rule 3 of Order 23 committed a serious error

in holding that the case fell under the second part of the said

Rule. It is contended that the second part applies only where

the defendant satisfies the plaintiff in regard to the whole or

part of the subject-matter of the suit. It is pointed out that

the second part refers to completed acts, that is acts which

have been already executed or performed, where nothing

more remains to be done in future by a defendant. He

submitted that in this case when the counsel for the

defendants agreed to vacate the suit premises on a future

date, that is, on or before 22-1-2002, it was a promise or an

agreement to do an act in future to satisfy the suit claim, and

not a case where "the defendant satisfies the plaintiff in

respect of the subject-matter of the suit". He pointed out that

if the defendants had vacated and delivered the premises to

the plaintiffs and thereafter the counsel for the defendants

had confirmed the same and the suit had been disposed of

recording the said submission, then it would fall under the

second part. The appellant contends that the High Court

having held that the case did not fall under the first part of

Rule 3, and the case demonstrably not falling under the

second part of Rule 3, it has to be held that there was no

lawful agreement or compromise. It is submitted that the first

appellate court was justified in setting aside the consent

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decree and remanding the matter to the trial court. On the

other hand, the learned counsel for the landlords contended

that the District Court had no jurisdiction to entertain the

appeal against a consent decree. It is also contended that

there was a compromise by admitting the claim of the

plaintiffs, and, therefore, the consequential decree is valid

and binding. On the contentions raised, the following two

questions arise for consideration:

(i) Whether the appeal filed by Pushpa Devi under

Section 96 of the Code of Civil Procedure against the

consent decree was maintainable.

(ii) Whether the compromise on 23-5-2001 resulting in

a consent decree dated 18-7-2001 was not a valid

compromise under Order 23 Rule 3 CPC.

Re: Point (i)

15. It is no doubt true that the landlords did not contend

either before the first appellate court or before the High

Court that the appeal against the consent decree was not

maintainable. This contention is urged for the first time in this

Court. The contention relates to jurisdiction of the appellate

court and is evident from the record. Such a plea does not

require any evidence. Further, being a contention relating to

the jurisdiction of the appellate court, it does not require any

"pleading". Though this Court will not normally permit a new

plea to be raised at the hearing of the special leave petition

or an appeal under Article 136, where such plea does not

involve any question of fact or amendment of pleading and is

purely one of law, particularly relating to jurisdiction of the

appellate court, it can be entertained by this Court. (See

Shanti Devi v. Bimla Devi and Zahoor v. State of U.P.) In

Hiralal Vallabhram v. Kastorbhai Lalbhat this Court

observed: (SCR pp. 347 F-G & 348 D)

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"[T]hough the question of jurisdiction had not been

urged before the High Court it stares one in the face on

the judgment of the appellate court. We are satisfied

that the appellate court had no jurisdiction.... Though

this point was not raised in the High Court, it is so

obvious that we have permitted the [plea to be raised]

before us."

In this case, the contention raised being one relating to

jurisdiction of the appellate court, we have permitted the said

contention and heard both sides thereon.

16. Section 96 provides for appeals from original decrees.

Sub-section (3) of Section 96, however, provides that no

appeal shall lie from a decree passed by the court with the

consent of the parties. We may notice here that Order 43

Rule 1(m) CPC had earlier provided for an appeal against the

order under Rule 3 Order 23 recording or refusing to record

an agreement, a compromise or satisfaction. But clause (m)

of Rule 1 Order 43 was omitted by Act 104 of 1976 with effect

from 1-2-1977. Simultaneously, a proviso was added to Rule 3

Order 23 with effect from 1-2-1977. We extract below the

relevant portion of the said proviso:

"Provided that where it is alleged by one party and

denied by the other that an adjustment or satisfaction

has been arrived at, the court shall decide the

question;"

Rule 3-A was also added in Order 23 with effect from 1-

2-1977 barring any suit to set aside a decree on the ground

that the compromise on which the decree is based was not

lawful.

17. The position that emerges from the amended provisions

of Order 23 can be summed up thus:

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(i) No appeal is maintainable against a consent decree

having regard to the specific bar contained in Section

96(3) CPC.

(ii) No appeal is maintainable against the order of the

court recording the compromise (or refusing to record

a compromise) in view of the deletion of clause (m) of

Rule 1 Order 43.

(iii) No independent suit can be filed for setting aside a

compromise decree on the ground that the

compromise was not lawful in view of the bar

contained in Rule 3-A.

(iv) A consent decree operates as an estoppel and is

valid and binding unless it is set aside by the court

which passed the consent decree, by an order on an

application under the proviso to Rule 3 Order 23.

Therefore, the only remedy available to a party to a

consent decree to avoid such consent decree, is to approach

the court which recorded the compromise and made a decree

in terms of it and establish that there was no compromise. In

that event, the court which recorded the compromise will

itself consider and decide the question as to whether there

was a valid compromise or not. This is so because a consent

decree is nothing but contract between parties superimposed

with the seal of approval of the court. The validity of a

consent decree depends wholly on the validity of the

agreement or compromise on which it is made. The second

defendant, who challenged the consent compromise decree

was fully aware of this position as she filed an application for

setting aside the consent decree on 21-8-2001 by alleging

that there was no valid compromise in accordance with law.

Significantly, none of the other defendants challenged the

consent decree. For reasons best known to herself, the second

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defendant within a few days thereafter (that is on 27-8-2001)

filed an appeal and chose not to pursue the application filed

before the court which passed the consent decree. Such an

appeal by the second defendant was not maintainable,

having regard to the express bar contained in Section 96(3) of

the Code.” (Emphasis is mine.)

15. From reading of the above pronouncement, it is clear that

suit of the respondent, was not maintainable. Therefore, only remedy

available to a party to a consent decree to avoid such consent decree, is to

approach the court which recorded the compromise and made a decree in

terms of it, and establish that there was no compromise. In that event, the

court which recorded the compromise will itself consider and decide the

question as to whether there was a valid compromise or not. This is so

because a consent decree is nothing but contract between parties

superimposed with the seal of approval of the Court. The validity of a

consent decree depends wholly on the validity of the agreement or

compromise on which it is made. The abovesaid view has been reiterated

by the Hon’ble Apex Court in recent case of Manjunath supra.

16. Contention of the respondent that the appellant cannot raise

plea of maintainability at this stage, is liable to be rejected for also being

contradictory; as, admittedly the learned Trial Court had framed Issue

no.4 regarding maintainability of the suit. Needless to say, the said Issue

would have been framed by the learned trial court only because the

appellant had raised such a plea. Therefore, it cannot be said that

appellant has raised plea of maintainability of the suit only before this

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Court. Even otherwise, in terms of enunciation of law by the Hon’ble

Supreme Court in aforesaid reproduced judgment of Pushpa Devi Bhagat

(supra), it has been clearly held that when the contention relates to the

jurisdiction and evidence from the record, such a plea does not require

any evidence and can therefore, be raised at any stage.

17. Learned counsel for the respondent is unable to deny or

dispute these facts. However, repeatedly submits that the same has been

obtained fraudulently.

18. As regards the plea of fraud, learned counsel for the

respondent has relied upon findings of the learned First Appellate Court in

paras 13 and 16 of the judgment dated 13.08.2008, which read as under:-

“13.I have given my considerable thoughts to the rival

submissions made before me led by the parties and also gone

through the evidence and documents produced on file very

carefully. From the perusal of documents placed on file and

after perusing the evidence of the parties makes the matter

manifestly clear that issues no.1 and 2 were taken up by

leaned lower court together and have wrongly held the

findings of these against the appellant/plaintiff and in favour

of defendant, whereas it should be in favour of plaintiff. To

prove these issues, appellant/plaintiff Smt. Bharpai himself

stepped in to witness box as PW.1 and stated in her

examination in chief that the land in dispute had come from

her mother. She further deposed that Ram Sarup

respondent/defendant has asked her that he will take care of

her land and she consented him to take care of her land and

regarding the above said decree, she has come to know

about one year back and have not get passed any decree in

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favour of respondent/defendant and this decree has been

passed by fraud. PW.2 Santosh deposed in her examination in

chief by way of affidavit to the effect that the land in dispute

is 16 bighas and appellant/plaintiff is owner of land in

dispute. He further deposed that on the pretext of Power of

Attorney that he will take care of her land and get passed a

decree by playing fraud and misrepresentation. Further, Amir

Singh who appeared in the witness box as PW.3 stated on the

same lines as stated by PW.2 and particularly stated that the

decree has been got passed by playing fraud. He tendered

Ex.P1 jamabandi for the year 1994-95 in which Bharpai,

Parvati and Shanti daughters of Smt. Lachmi has been shown

as owner in possession of half share and mutation no. 1016

which was get entered on the basis of the judgment and

decree in dispute in favour of respondent/defendant and both

the copies were got issued to the appellant/plaintiff on

20.02.2001. Ex.P3 and Ex.P4 is the copy of judgment and

decree dated 05.06.1996 which was passed on the basis of

family settlement. Ex.P5 and Ex. P6 which are the mutation

no. 307 which was entered in the name of Lachmi, the

mother of the appellant/plaintiff Ex.P6 in which the land got

mutated in the name of husband of Lachmi namely, Bijay.

However, in the Hindi version, it is mentioned as Beheju son

of Sohla which clarifies the stand of the appellant/plaintiff

that the land in dispute inherited by appellant/plaintiff from

Lachmi and Lachmi from her husband Bijay. It is further

clarified from the plaint that it is clearly mentioned by the

appellant/plaintiff that there was no pre-existing right of the

respondent / defendant in the land in dispute. In the plaint,

grounds taken by the appellant/plaintiff in para no. 7(a)(c)

and (d) that the respondent/defendant having no pre-existing

right and the decree is an act of fraud and misrepresentation

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and the respondent/defendant cannot enter into any such

family settlement as shown in civil suit no. 209 of 1996. It has

also been stated in para 5 of the plaint that on 05.06.1996,

the respondent/defendant had obtained right thumb

impressions of the appellant/plaintiff on various papers with

the representation that these are required for executing

power of attorney and also produced some case law, but

nothing has been asked from the appellant/plaintiff at that

time. Hence, it is held that the decree dated 05.06.1996

passed by respondent/defendant Ram Sarup by way of

playing fraud and misrepresentation and the same is not

binding upon the rights of appellant/plaintiff Smt. Bharpai.

XXX XXX XXX XXX

16.So-far-as, the respondent/defendant pleading in Ex.D1

which is copy of plaint, in para no.2 of the plaint, a family

settlement was entered between the appellant/plaintiff and

defendant, have been mentioned, however, if there was any

family settlement, why it was entered between the

appellant/plaintiff and defendant only, whereas

respondent/defendant also having two brothers Ram Singh

and Ramphal who are not made party to the family

settlement and this creates suspicion that three was no

family settlement arrived at between the parties and the

same is mentioned as oral. However, when the

respondent/defendant is getting a valuable property in his

name by way of decree why the family settlement was not

reduced into writing and the same was not registered. Even

from the perusal of the Lower Court file, it has not come on

the file that three was any family settlement arrived at

between the parties and even the witnesses produced by the

respondent/defendant on the file, Ram Sarup DW.1 in cross

examination, it was admitted by him that defendants having

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no right in the land of Bijay Ram who is the husband of

Lachmi. It is also admitted that he is legal heir of Girdhari and

it is correct that as a legal heir, he has received his half share

in the land from his father and it is also admitted by him that

he has no pre-existing right. Ramphal DW.2 who is brother of

plaintiff, the same has been admitted in cross examination

that appellant/plaintiff is an illiterate and an old woman and

he did not know how to get a court decree passed in favour of

whom having pre-existing right in the land in dispute. Even

DW.3 Bharat Singh appeared in the witness box. He stated in

his cross-examination that Bharpai has not filed written

statement in his presence, who was the counsel of Ram Sarup

in that civil suit. Even DW.4 Shiv Kumar Clerk of Sh. S.K.

Sharma, Advocate examined by the defendant. He is not a

handwriting expert and can not prove the thumb impression

of the appellant/plaintiff Bharapai on the file and hence, no

handwriting expert has been produced by the

respondent/defendant to prove the thumb impression of

appellant/plaintiff Bharpai. DW.6 Dharambir has deposed in

cross examination that Panchayat was held in the year 1993-

94. Ramphal and Satbir were present in the Panchayat. It is

pertinent to mention here that they have not been proved

any document to show that any family settlement was ever

arrived at between the parties. The suit was filed on

26.04.1996 and in which family settlement of six months has

been mentioned but from perusal of statement of his witness

shows that he does not know about any family settlement.

No cogent and convincing evidence has been brought on

record to show that any family settlement was arrived at

between the parties or not. However, I have also gone

through the case law cited in Ved. Pal alias Vedu's case

(Supra); in Gurdev's case (Supra; in Lal Singh's case (Supra)

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and in Smt. Shanti Devi (dead) represented by LR case

(Supra), relied upon by learned counsel for the

respondent/defendant very carefully and minutely, but the

same are not applicable to the facts and circumstances of the

present case, because the same are based on different

footing.”

19. A bare reading of the above findings/reasoning of the learned

First Appellate Court in para 13 show that the same are based on

conjectures and surmises. In holding the decree dated 5.6.1996 to be

fraudulent, the learned 1st Appellate Court has only relied upon the oral

testimony of the plaintiff, and the averments made in the plaint. It is my

clear view, that the same is not sufficient to prove the fraud allegedly

committed by the appellant. On a Court query, learned counsel for the

respondent has admitted that plaintiff had not examined any handwriting

expert to prove that the thumb impression borne on the written

statement filed by the present plaintiff to the Civil suit no. 209 of 1996,

was not hers. On the contrary, the record amply establishes that no fraud

was played by the appellant upon the plaintiff. The plaint of the previous

civil suit No. 209 of 1996 filed on 24.04.1996 titled as Ram Sarup vs.

Bharpai in respect of the present suit land is on record as Ex.D1 (at page

177 of the LCR). The present plaintiff had duly filed written statement

dated nil Ex.D2 (at page 185 of the LCR) to the said suit; wherein she had

admitted the claim of the appellant. Not only this, what clinches the issue

is that the present plaintiff had in fact, appeared in the suit no.209 filed by

the defendant and engaged Sh. Bir Singh Bumla, Advocate. She appeared

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in person before the Additional Civil Judge (Sr. Divn.) Bhiwani and got

recorded her statement after hearing and understanding the contents of

the suit filed by him. She appended her right-hand thumb impression on

her statement. Thereafter, the Judgment and decree dated 05.06.1996

was passed by the Ld. Court. In the statement dated 06.05.1996 Ex.D3 (at

page 189 of the LCR) recorded by the plaintiff before the learned Trial

Court she had stated as follows:-

“Stated that the suit of plaintiff has been heard and

understood and it is correct. Suit of the plaintiff may be

decreed. Parties to bear their own costs.”

20. On the basis of the above statement, the civil suit no. 209 of

1996 came to be decreed on 5.6.1996. Thus, Mutation bearing No. 1016

was rightly entered and sanctioned on 29.06.1996 in name of defendant

on the basis of Judgment and decree dated 05.06.1996. In holding the

decree dated 5.6.1996 to be fraudulent, the First Appellate Court has

totally ignored the above said evidence. Further, the findings of the

learned first Appellate Court in para 16 of its judgment are entirely

beyond pleadings, and therefore unsustainable. Moreover, the ‘suspicion’

of the Appellate Court, that there was no settlement is purely conjectural;

especially in view of the statement of the plaintiff herself attesting to the

same.

21. Even in her evidence as PW1, plaintiff has only stated that

she had not transferred the land to anyone. She had deposed that she was

residing in village Madha and as such, Ram Sarup-defendant told her that

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he would look-after her land. She told Ram Sarup, who was her cousin

(Chachera Bhai) to look after her land. But no written Power of attorney

was given by her. She further stated that she challenged the instant

decree which she got to know a year ago. She has not suffered any decree

about her land in favour of the defendant. He obtained it fraudulently.

Plaintiff thus, failed to substantiate the plea of alleged fraud played upon

her by the defendant in order to get the land transferred through

judgment and decree dated 05.06.1996.

22. On the other hand, the defendant by examining himself (DW-

1); his Counsel namely Sh. Bharat Singh Bura (DW-3) who proved the copy

of plaint dated 24.04.1996 (Ex. D-1); and DW-4 (Shiv Kumar, clerk of

S.K.Sharma, Advocate, Bhiwani) who proved and identified the signatures

of Sh. Bir Singh Bumla on the written statement dated nil filed by Smt,

Bharpai (Ex. D-2); and on the statement of Smt. Bharpai (Ex. D-3) duly

proved that the compromise was genuinely affected inter se the parties to

the suit and thereafter the consent Judgment and decree dated

05.06.1996 was passed. It is to be noted that DW-3 (Sh. Bharat Singh Bura,

Advocate) proved the Plaint of suit bearing No. 209 titled as "Ram Sarup

Vs. Bharpai". He admitted his signatures on the Plaint and stated that he

drafted the plaint on the instructions of Ram Sarup, the copy of which is

Ex. D-1. He further stated that he made statement after the statement

was given by the defendant in that case (Bharpai). DW-4 (Shiv Kumar, clerk

to Sh. S.K. Sharma Advocate, Bhiwani) stated that he had worked with Sh.

Bir Singh Bumla, Advocate and identified his signatures on the written

RSA-3032-2008 (O&M) - 20 -

statement filed in civil suit no. 209, decided on 05.06.1996. He also

identified the signatures of Sh. Bir Singh Bumla, Advocate on the power of

Attorney. He stated that he has seen the original statement given by

Bharpai who was identified by Sh. Bir Singh Bumla, Advocate whose

signatures were identified by this witness. Thus, defendant has proved his

case not only by producing sufficient documentary evidence, but also

examining necessary witnesses.

23. Even otherwise, case of the plaintiff has to stand on its own

legs. The plaintiff has alleged fraud. Thus, it was for the plaintiff to prove

the said fraud by leading positive evidence. As noted above, plaintiff has

miserably failed to discharge that onus. Relevant findings of the learned

Trial Court in the judgment dated 10.11.2003 are as follows: -

“It may be pointed out here that previously the land in

dispute was owned by one Lachmi Devi D/o Vijay Ram,

thereafter the land in dispute was owned by the plaintiff and

her sister. In the present suit plaintiff has challenged the

decree dated 05.06.1996 on the grounds that the defendant

had obtained the same by mis-representing the facts that the

wanted her thumb impressions for power of attorney in

respect of the land in dispute. The specific allegation has

been raised by the plaintiff in this regard but while appearing

as PWI, plaintiff has only stated that defendant had asked her

that he would take care of her land and thereafter she had

given possession of the disputed land to him but no written

power of attorney was given by her to the defendant. Plaintiff

has no where stated that defendant had obtained her thumb

impressions on some papers rather she has stated that no

written power of attorney was given by her to the defendant,

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PW2, Santosh and PW3 Amir Singh have also not stated that

defendant had obtained the thumb impressions of the

plaintiff on some papers. They have simply mentioned in their

affidavits that defendant had asked the power of attorney.

Plaintiff should have led cogent and convincing evidence to

prove that defendant had taken her thumb impressions on

some papers but she has failed to prove the same by simply

stating that defendant had asked her to take care of her land,

the ingredients of fraud and mis-representation are not

proved. Whereas defendant has led documentary evidence in

the form of copy of plaint Ex.D1, written statement Ex. D2,

statement of plaintiff Ex.D3 Vakalatnama Ex. D4. Besides

judgment and decree Ex.P3 and Ex.P4 are also on the file.

Plaint Ex.D1 and written statement Ex.D2 have duly been

proved by the plaintiff by leading oral as well as proved by

the plaintiff by leading oral as well as documentary evidence.

Defendant has duly rebutted the oral evidence produced by

the plaintiff, therefore, plaintiff has failed to prove that

defendant had played fraud upon her and obtained the

decree in question in his favour by mis-representing the facts.

Perusal of Ex.DI certified copy of plaint in the previous suit

filed by Ram Sarup against the plaintiff shows that judgment

Ex.P3 was passed on the basis of family settlement which was

affected between the parties six months prior to filing of the

previous suit. Defendant can be said to have pre-existing right

in the land in dispute on the basis of said family settlement at

the time of filing of the previous suit by him...........”

24. Ld. Counsel for the respondent is unable to dispute or

controvert the above said findings of the learned trial court. In view of the

above discussion, the present Regular Second Appeal is allowed; and

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impugned judgment and decree dated 13.08.2008 passed by learned

Additional District Judge-III, Bhiwani is set aside; and the judgment and

decree dated 10.11.2003 passed by learned Civil Judge (Junior Division),

Bhiwani is restored. Resultantly, the suit of the plaintiff stands dismissed.

25. Pending applications, if any, stand disposed of.

08.12.2025 (NIDHI GUPTA)

Divyanshi JUDGE

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No