Code of Civil Procedure, 1908 – Order 10 Rule 1 and Order 15 Rule 1 – Deeds and Documents – Family Arrangement – Suit – Fraudulent Suit – Suits for Permanent Injunction and Possession – Based on an earlier compromise decree.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[DR. B.S. Chauhan] and [Dipak Misra] JJ.
May 22, 2012.
CIVIL APPEAL No. 1723 OF 2008
Smt. Badami (Deceased) By her L.R. ….. Appellant
Bhali … Respondent
J U D G M E N T
Dipak Misra, J.
The singular question that arises for consideration in this appeal by way of special leave under Article 136 of the Constitution of India is whether the judgment and decree dated 27.11.1973 passed by the learned sub-Judge, Kaithal in Civil Suit No. 1422 of 1973 is to be declared as a nullity being vitiated by fraud and manifest illegality being writ large and thereby the claim of right, title and interest and possession based on the said judgment and decree by the respondent-plaintiff in the subsequent suits, namely, Civil Suit No. 401 of 1984 and Civil Suit No. 784 of 1984 which have been decreed and got affirmance by a composite order passed by the Additional District Judge, Kurukshetra in Civil Appeal No. 19/13 of 1987 and Civil Appeal No. 18/13 of 1986 and further gained concurrence by the learned single Judge of the High Court of Punjab and Haryana at Chandigarh in R.S.A. Nos. 2001 of 1988 and 2002 of 1988, is bound to collapse and founder.
2. To appreciate the controversy, it is incumbent to travel to the year 1973 as to how the original suit was instituted, proceeded and eventually decreed. For the said purpose it is necessary to note that one Dai Ram was the common ancestor. He had two sons, namely, Dinda and Rachna. Dinda had one son, namely, Roora and Rachna had one son, namely, Ram Chand. Badami was the widow of Roora and Bhali is the son of Ram Chand. Risali is the daughter of Roora and Badami. Bhali, respondent herein, instituted Civil Suit No. 1422 of 1973 on 24.11.1973 alleging that Badami was the owner of 1894/9549 share of the ancestral land and had received it at a prior arrangement. When she was in possession, there was a family settlement on 1.6.1972 and in that family settlement the defendant gave her whole share to the plaintiff-Bhali and the possession of the same was also handed over in pursuance of that settlement. As pleaded, the defendant-Badami agreed that he would get the revenue entries of the suit land corrected in favour of the plaintiff but the name of the defendant continued as owner in the revenue records and despite the request of the plaintiff therein not to interfere with the possession there was interference. Hence, he had been compelled to file a suit for declaration and for permanent injunction.
3. On the date of presentation of the plaint, the defendant in the suit, Badami, filed the written statement admitting the assertions in the plaint to be correct and, in fact, prayed for decree of the suit. The learned sub-Judge, Kaithal on 27.11.1973 decreed the suit.
4. As the facts would reveal, in spite of the said consent decree the record of entries stood in the name of Badami and she remained in possession and enjoyed the same. The respondentBhali, thereafter, initially instituted Civil Suit No. 401 of 1984 seeking permanent injunction against her restraining from alienating the land in any manner. The learned trial Judge relied on the earlier judgment and decree dated 27.11.1973, did not accept the stand put forth by the defendant that the said decree was obtained by fraud and passed a decree for permanent injunction restraining the defendant from alienating the suit land to anyone in any manner.
5. In the second suit for possession, the learned trial Judge framed two vital issues, namely, whether the plaintiff was owner of the suit land and whether the impugned decree dated 27.11.1973 is null, void and not binding on the rights of the defendants and, thereafter, came to hold that factual matrix would show that the decree was passed three days after and Badami had appeared in the court, and hence, the decree was validly passed. On appeals being preferred, the learned Additional District Judge affirmed the said findings further elaborating the reasoning that Badami had appeared in court, made a statement and given the thumb mark and further she had not been able to discharge the onus that the decree was obtained by fraud. The appellate court gave credence to the family settlement and also took note of the fact that the parties were related and hence, there was no reason to discard the family settlement; and that it was a common phenomenon that a member of a family is given property out of love and affection. The learned appellate Judge opined that though after the decree dated 27.11.1973 the possession was with the appellant and the revenue entry had not been corrected, that was possibly due to an implied understanding between the parties that the arrangement under the decree would be worked out only after the death of the appellant, i.e., Badami. Being of this view, the learned appellate Judge dismissed both the appeals.
6. Being aggrieved, Badami, the original defendant, preferred two Regular Second Appeals, namely, R.S.A. Nos. 2001 of 1988 and 2002 of 1988. During the pendency of the appeals, she expired and Risali, her daughter, was substituted by order dated 21.2.1992 in both the appeals. The learned single Judge who dealt with the appeals by the impugned judgment dated 1 st September, 2006 referred to the issues framed by the learned trial Judge, the analysis made by the courts below and came to hold that original defendant No. 1 had failed to discharge the onus that the initial decree dated 27.11.1973 was obtained by fraud inasmuch as she had given a statement in court and put the thumb impression and that the conclusion drawn by the courts below were justified being based on facts and did not warrant any interference as no substantial question of law was involved.
7. We have heard learned counsel for the parties and perused the records.
8. To appreciate the controversy, it is appropriate to refer to para 3 of the plaint presented on 24.11.1973. It reads as follows:-