Point of Law: Fraud - Fraud has been defined in Section 17 of the Contract Act to mean as Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract.

JUDGMENT :

1. Suit filed by respondents No. 2 to 4 for declaration with consequential relief of permanent prohibitory injunction was dismissed by the learned trial Court. The appeal filed by respondents No. 2 to 4 was allowed and their suit was decreed by the learned first appellate Court. This appeal under Section 100 of the Code of Civil Procedure (in short CPC) is by the legal representatives of original defendant No. 1 Milkhi Ram.

2. Facts

2(i) Contesting parties to the suit are related to each other and have common ancestor. For better understanding of facts, following pedigree table of parties has been drawn :-

Bangali Tirhu

Jagdish Chand Milkhi Ram Suhali Devi Samphal

Piar Chand Karam Chand Ravi Chand Raj Kumar Rajinder Kumar Parveen Kumar Satya Devi

Plaintiffs Contesting Defendants

2(ii) Plaint

2(ii)(a) Plaintiffs (present respondents No. 2 to 4) in their plaint filed on 10.10.1995 pleaded that suit land measuring 15 kanal 6 marlas (15K-6M) was entered in the jamabandi for the year 1992-93 in the ownership and possession of Samphal (defendant No.2) and other co-sharers. Defendant No. 2 had not been heard for last more than 40 years, hence presumed dead. Plaintiffs’ father Jagdish Chand Chand and original defendant No. 1 (Milkhi Ram) were real brothers, sons of Bangali. Bangali was in possession of Samphal’s share in the suit land (7K-13M) as non-occupancy tenant on payment of rent. After Bangali’s death, the occupancy rights were inherited by his sons Jagdish Chand and Milkhi Ram in equal shares. They both became owners of tenanted land by operation of law on coming into force of the H.P. Tenancy and Land Reforms Act 1972. Jagdish Chand died on 16.12.1990. After his death, suit land to the extent of Samphal’s share was being cultivated by plaintiffs (legal representatives of Jagdish Chand) and defendant No. 1 Milkhi Ram in equal shares. The revenue entries reflecting name of Samphal as owner-in-possession of the suit land were wrong and illegal.

2(ii)(b) The plaintiffs further pleaded that their real paternal uncle Milkhi Ram (defendant No. 1 ) in order to grab Samphal’s share in the suit property, filed Civil Suit No. 188 of 1991, titled Milkhi Ram Vs. Safail @ Samphal. Plaintiffs were not impleaded in that suit. An ex-parte decree was obtained by defendant No. 1 in that suit qua Samphal’s share in the suit land in a fraudulent manner. In this decree, Milkhi Ram was declared owner in possession of 7 K-13 M i.e. Samphal’s share in the suit land. The existing revenue entries showing Samphal as owner in possession were declared illegal. Plaintiffs asserted that the said judgment and decree dated 01.06.1992 was a nullity and not binding on the plaintiffs.

2(ii)(c) Decree was prayed for by the plaintiffs that they alongwith their uncle/defendant No.1 Milkhi Ram were joint owners in possession in equal shares over Samphal’s share in the suit land measuring 7 kanal 13 marlas. Judgment and decree dated 01.06.1992 passed in Civil Suit No. 188 of 1991 titled Milkhi Ram Vs. Samphal be declared as null and void. Consequential relief of permanent prohibitory injunction was also prayed for.

Written Statement

2(iii) Defendant No. 2 Samphal who as per the plaint had not been heard for last forty years and thus presumed dead was eventually served through publication. He remained ex-parte. Milkhi Ram, defendant No. 1 in his written statement took preliminary objection of suit being barred by limitation and also it being not maintainable. On merits, the defence was that defendant No. 1 was the only non-occupancy tenant over the suit land. His nephews (plaintiffs) had no right over the land. Plaintiffs’ predecessor/Jagdish Chand had himself given an undertaking in the family partition that he will have no concern over the suit land. Defendant No. 1 also denied that his father Bangali ever cultivated the suit land as non-occupancy tenant. Gist of defendant No. 1’s defence was that neither the plaintiffs nor their father Jagdish Chand nor their grandf