Punjab-Haryana High Court
Yashpal Yadav vs Virender Singh And Another on 13 March, 2024
Neutral Citation No:=2024:PHHC:036813
RSA-694-2024 (O&M) -1- 2024:PHHC:036813
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
119 RSA-694-2024 (O&M)
Date of decision:13.03.2024
Yashpal Yadav ... Appellant
Vs.
Virender Singh & another ... Respondents
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. Kartar Singh, Advocate for the appellant.
...
SUKHVINDER KAUR, J.
1. Instant regular second appeal has been filed by the
appellant/defendant No.1 against the concurrent finding recorded by both the
Courts below vide which suit of the plaintiff was decreed.
2. Brief facts of the case as per plaint are that plaintiff filed a suit
for declaration and permanent injunction with consequential relief for
possession alleging that Vikramaditya was owner in possession of the
agricultural land as mentioned in para No.1 of the plaint which was inherited
by him from his father and who in turn had inherited it from his father. The
suit property was coparcenary in hands of Sh. Vikramaditya, who was the
karta of the coparcenary family. Plaintiff being coparcener has a birth right
in the suit property and after death of Vikramaditya, plaintiff is owner in
possession over the suit property as per his share. It has been alleged that
Vikramaditya suffered a collusive decree secretly in favour of defendant
No.1 dated 01.06.2000 in a suit titled as "Yashpal Vs. Vikramaditya"
bearing Civil Suit No.389 dated 23.10.1999 passed by Additional Civil
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Judge (Senior Division), Rewari. It was alleged that said decree is liable to
be set aside because late Vikramditya being karta of the family had limited
rights and was not competent to transfer the suit property in favour of
defendant No.1. Such judgment and decree has been passed on false and
fabricated facts. Mutation No.12109 dated 30.10.2014 which had been
sanctioned after 12 years is not binding upon the plaintiff. Such judgment
and decree was not registered under Section 17 of the Registration Act and
has no effect in the eyes of law. Since defendant wanted to interfere in the
peaceful possession and ownership of the plaintiff, so the present suit was
filed.
3. Vide judgment and decree dated 19.07.2017 passed by the
Court of Additional Civil Judge (Sr. Division), Kosli, suit of the plaintiff
was decreed. The appeal was preferred by defendant No.1 before the First
Appellate Court of the Additional District Judge, Rewari and the same was
dismissed vide judgment and decree dated 02.09.2023. Hence, defendant
No.1/appellant has knocked the doors of this Court by way of filing the
present Regular Second Appeal.
4. I have heard learned counsel for the appellant and gone through
the record thoroughly.
5. Learned counsel for the appellant has contended that both the
Courts below have failed to take into consideration the material fact that
respondent No.1/plaintiff has not proved that the property in question is
ancestral property. In the present case, there are four co-sharers of the
property i.e. appellant, respondent No.1, father and sister. In this case, father
has given his share to the appellant and his sister and other co-sharers have
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not challenged the said decree. So, the appellant is entitled to retain
possession and ownership of ¾ share of the suit property. Even if the case
of the plaintiff/respondent is admitted, then also respondent No.1 is entitled
to ¼ share of the suit property. He has argued that the appellant/defendant
No.1 had got the suit property pursuant to the oral settlement which was
agreed by the other co-sharers, sister and respondent No.1/plaintiff. Father of
respondent No.1 was being looked after by the appellant/defendant No.1, so
the appellant is in possession of the property in pursuance to the oral
settlement and the other co-sharers have approved the said family settlement.
He has submitted that the judgments and decrees were notice to the whole
world. So the limitation shall start from the date of judgment and decree and
not from the sanction of the mutation. So both the Courts below have
wrongly held that the suit is within the period of limitation.
6. Copy of plaint Ex.P1, of civil suit, by which the
appellant/defendant No.1 had obtained the judgment and decree in his favour
in the previous suit titled as 'Yashpal Vs. Virender' has been placed on
record. In the said plaint, the appellant/defendant himself had mentioned the
suit property as ancestral coparcenary property whose owner in possession
was Vikramaditya being the karta of the family and the appellant/defendant
had claimed to be having a birth right in the suit property.
7. The written statement Ex.P2 which was filed in that case by late
Sh. Vikramaditya has also been placed on record, wherein he had accepted
nature of the suit property to be the hindu joint family coparcenary property
and also accepted pre-existing rights of the then plaintiff who is presently
defendant No.1 - Yashpal. So once the present defendant himself had
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asserted the nature of the property to be ancestral coparcenary property and
claimed having birth right in it, now he is estopped by his own conduct to
plead otherwise. In the said plaint Ex.P1 in para No.2, a pedigree table has
been given wherein, the present defendant No.1 had shown himself to be the
only son and legal heir of late Vikramaditya. But while appearing as DW2,
he has admitted during his cross-examination that he had one real brother
and one real sister. So it stands proved that the decree Ex.P3 placed on
record was obtained by the defendant by way of mis-representation and
fraud upon the Court.
8. As per mutation Ex.P8, the suit property was inherited by
grandfather of the plaintiff and defendant No.1, namely, Chhaju from his
father - Ranjeet and thereafter that property was inherited by Vikramaditya.
So the Courts below have rightly held that the disputed property is ancestral
in nature and respondent/plaintiff, proforma respondent and
appellant/defendant have birth rights in the same and Vikramaditya had no
right to transfer the disputed property only in favour of the
appellant/defendant. So the judgment and decree dated 01.06.2000 is not
binding upon the rights of the plaintiff/respondent. A fraudulent decree
cannot take away any rights from the plaintiff and a person who is not
coming to the Court with clean hands is not entitled to the relief claimed by
such person.
9. Even if Vikramaditya was being looked after by defendant No.1
and he was residing with him, even then the pre-existing right of the
respondent/plaintiff in the suit property could not be taken away, by
concealing the true facts from the Court while obtaining the judgment and
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decree dated 01.06.2000.
10. The Courts below have also rightly held that the limitation
period to challenge the aforesaid judgment and decree will start running
from the date when such judgment and decree came in the knowledge of the
respondent/plaintiff. Name of respondent/plaintiff was reflected in the
revenue record in the year 2014 when the mutation No.12109 dated
30.10.2014 was sanctioned in his favour and it is the specific plea of
respondent/plaintiff that he came to know about the said judgment and
decree when the mutation was sanctioned in favour of appellant/defendant
No.1 and then the present suit has been filed within the limitation from the
date of the said knowledge.
11. No question of law much less substantial question of law arises
for determination in the present second appeal. The appeal is without any
merits and is hereby dismissed.
12. Pending application(s), if any, shall also stand disposed of.
( SUKHVINDER KAUR )
JUDGE
13.03.2024
harjeet
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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