Punjab-Haryana High Court
Kamal Kumar Gemini vs Nilamber Gemini & Ors on 8 January, 2025
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2025:PHHC:002863
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RSA-2229-2017 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
107 RSA-2229-2017 (O&M)
Date of decision:08.01.2025
Kamal Kumar Gemini
... Appellant
Vs.
Nilamber Gemini and others
... Respondents
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Ajay Jain, Advocate for the appellant.
SUVIR SEHGAL J.
1. Assailing the judgments and decrees passed by both the
Courts whereby concurrent findings have been recorded, appellant-
plaintiff has filed the instant second appeal.
2. Pleaded case of the plaintiff is that he had purchased the
suit property along with defendant No.1 in equal shares vide
registered sale deed dated 30.12.1992. A civil suit bearing No. 112 of
2000 was filed by defendants No.1 to 3 regarding some properties
including the suit property and by playing a fraud, they obtained a
compromise decree dated 18.11.2000. A mutation was entered on the
basis of compromise decree. He alleged that on the basis of the
mutation, a sale deed dated 20.07.2024 had been executed by
defendant No.1 in favour of Jai Kumar and defendant No.1 intends to
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alienate the property. Alleging that he had been deceived and had
never received summons in the previous suit, plaintiff filed a suit for
declaration to the effect that judgment and decree dated 18.11.2000
passed in the previous suit and mutation sanctioned on its basis, are
illegal, null and void and not binding on the right of the plaintiff and
that he is the one-half owner in the suit property.
3. Upon notice, some of the defendants filed a written
statement inter alia questioning the locus standi of the plaintiff to file
the suit. It was submitted that the plaintiff along with his father, some
defendants and other family members were jointly owners in
possession of the suit property. A written compromise was arrived at
between them in the previous litigation. On the basis of the settlement
Ex.C1 amongst the family, decree dated 18.11.2000 was passed,
which was duly registered. Plaintiff's father raised numerous
objections before the revenue authorities, which were dismissed by
the Collector. It was denied that the compromise decree was obtained
by fraud. The execution of sale deed dated 20.07.2004 in favour of
defendant No.6, who is brother of the plaintiff, was admitted and it
was averred that on the same date, plaintiff executed a sale deed in
favour of defendant No.2. A stand was taken that plaintiff and
defendants No. 4 to 8 constituted a joint hindu family and all the
properties had been purchased out of the joint family funds.
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Defendants No. 4 to 8 appeared before the trial Court but did not file
any written statement and their defence was stuck off. Plaintiff did not
file any replication. On the basis of the pleadings of the parties,
following issues were framed:-
(i) Whether the plaintiff is entitled to declaration to
the effect that decree dated 18.11.2000 and mutation
No.12057 based thereon is null and void? OPP.
(ii) Whether plaintiff is entitled to ownership of
one-half of the suit property? OPP.
(iii) Whether the suit is not maintainable in the present
form? OPD.
(iv) Whether the suit is bad for non-joinder of
necessary parties? OPD
(v) Whether the plaintiff has no cause of action to file
the present suit? OPD.
(vi) Whether the plaintiff has concealed the true and
material facts from the Court? OPD.
(vii) Relief.
4. After contest, suit was dismissed by the trial Court by
judgment and decree dated 30.10.2012. Plaintiff remained
unsuccessful in the first appeal, which was rejected by the learned
Additional District Judge, Rewari, by judgment dated 14.10.2016,
resulting in the institution of the present appeal by him.
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5. Mr. Ajay Jain, counsel for the appellant has argued that
the suit property was never a part of the compromise Ex.C1, entered
into between the parties. He submits that previous decree dated
18.11.2000 had been obtained by fraud and that the appellant neither
engaged a counsel nor appeared before the trial Court to record his
statement. It is also his contention that the Courts have erred in
recording a finding that the suit is barred by limitation although, the
appellant had filed a suit within a period of three years of gaining
knowledge of the passing of the decree.
6. I have heard counsel for the appellant and considered his
submissions besides examining the requisitioned record with his able
assistance.
7. The suit property comprises of a hall, tin shed, workshop
and open area bearing house tax No. 3126/222 situated at Ganpat
Nagar, Rewari. Appellant claims to be one-half owner in the suit
property by virtue of registered sale deed dated 30.12.1992,
Ex.PW2/A. An examination of the compromise Ex.C1 shows that this
property specifically finds mention in the compromise. It, therefore,
does not lie in the mouth of the appellant to urge that the suit property
was not a part of the compromise entered into between the parties on
the basis of which decree dated 18.11.2000 Ex.P2 was passed.
Compromise Ex.C1 bears signatures of the appellant, his spouse,
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father and other family relations. Except for the appellant, no other
signatory to the compromise including his spouse, has alleged that the
compromise was obtained by deceit. A perusal of the sale deed dated
20.07.2004, Ex.PW7/A executed in favour of respondent No.6, Jai
Kumar, shows that the appellant had appeared as a vendee on behalf
of his brother-respondent No.6. The sale deed had been executed after
passing of the decree dated 18.11.2000, Ex.P2. Appellant, cannot
claim that he was not aware of the passing of the compromise decree
and that he came to know about it in July, 2007. Appellant has failed
to lead any cogent evidence to establish that the decree dated Ex.P2
had been obtained by fraud. Furthermore, Order 23 Rule 3A of the
Code of Civil Procedure bars the filing of the suit to set aside a
compromise decree. There is no infirmity in the judgments and
decrees passed by both the Courts, which are affirmed.
8. For the aforegoing reasons, this Court does not find any
merit in the appeal, which is dismissed.
9. As the main appeal has been decided, all pending
applications shall stand disposed of.
08.01.2025 (SUVIR SEHGAL)
pooja saini JUDGE
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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