The right to challenge a decree on the ground of fraud is only available to the person against whom fraud has been played and not by a third party.

Rakesh Kumar Jain, J.

1. The defendants are in second appeal against the judgment and decree of both the Courts below by which suit filed by the plaintiff for declaration that the judgment and decree dated 05.2.1977 allegedly suffered by Surjan Singh in favour of the defendants, is illegal and not binding upon his rights, has been decreed.

2. A few skeletal facts necessary to unfold the controversy between the parties can be gathered from the pedigree table which is reproduced below:-

Katha Singh

3 It is alleged by the plaintiff that she is the daughter of Surjan Singh (since deceased), who was owner of land measuring 57 kanals 01 marla, situated in village Panjawa and 13 kanals 09 marla in village Bainka. Surjan Singh had lost his eye sight about six years prior to his death and his physical condition was feeble. He had brought his grandson Jarnail Singh son of the plaintiff to his house in village Panjawa, where the plaintiff also came and started residing with him. The plaintiff is the only heir of Surjan Singh, who had died about 4-1/2 months prior to the filing of the suit, but the defendants who are the sons of Kundan Singh, obtained a decree from Surjan Singh by impersonating him in the Court, whereas the defendants have nothing to do with the property of said Surjan Singh as they do not constitute a Joint Hindu family with him. Therefore, the decree dated 05.2.1977 passed in Civil Suit No.380-1 of 1976 titled as Jagtar Singh and others v. Surjan Singh passed by Sub Judge, Ist Class, Giddarbaha, was challenged on the ground of fraud etc.

4. In the written statement, it was alleged that the suit is filed after a long delay, therefore, it is barred by limitation. Surjan Singh himself had executed a registered Will dated 7.10.1976 in favour of the defendants which was registered on 13.10.1976 as they used to render service to him and he had himself suffered the decree in question dated 05.2.1977 in respect of the land in question. The defendants claimed their right over the land in dispute not only on the basis of the decree but on the basis of the Will also.

5. On the pleadings of the parties, following issues were framed:-

1. Whether the decree dated 5.2.1977 passed by Sub Judge, Ist Class, in Jagtar Singh v. Surjan Singh is fraudulent, invalid and ineffective? OPP

2. Whether the plaintiff has no cause of action? OPD

3. Whether the plaintiff is estopped by her acts and conduct to file the present suit? OPD

4. Whether the suit in the present form is not maintainable? OPD

5. Relief.

6. While deciding issue No.1, the learned trial Court had observed that:-

"it is proved on file beyond reasonable doubt by positive, circumstantial and indirect evidence that in fact, Surjan Singh had appeared in that case in the Court and he himself had given that statement and he had himself thumb marked that statement".

The finding recorded on this issue is not challenged by the plaintiff in appeal and as such, it had become final between the parties. It was also observed by the learned trial Court that Manohar Lal Jagga, Document Writer (DW-2) stated on oath that the Will dated 07.10.1976 (Ex.D1) was executed by Surjan Singh in favour of the defendants, which was written by him at the instance of Surjan Singh and was read over to him who admitted it to be correct and thumb marked it.

7. Jangir Singh (DW-4) and Gurdial Singh (DW-5) are the marginal witnesses of the Will and have proved it. Besides this, Dewan K.S.Puri was examined as DW-7, who compared the thumb impression on the Will dated 07.10.1976 (Ex.Dl) with the thumb impression of Surjan Singh on his statement dated 10.12.1976 in Civil Suit No.380-1 of 1976 and concluded that the thumb impressions on the Will and the statement of Surjan Singh are identical.

8. The learned trial Court thus observed that the consent decree was suffered by Surjan Singh in which there was no element of fraud as alleged by the plaintiff that the decree was suffered by an imposter, although, the va