A decree obtained by fraud or impersonation is void and not binding on the parties.

N.K.Kapoor, J.

1. This is unsuccessful plaintiffs regular second appeal.

2. Plaintiffs filed a suit for the declaration to the effect that the decree dated 1.3.1984 passed in civil suit No. 114 of 1984 is null and void and any transaction carried on or entered into by the defendant is also null and void with consequential relief of permanent injunction restraining the defendant from creating any charge or lien upon the suit land or otherwise interfering with their peaceful cultivating possession over the land in any manner. On the basis of pedigree table as given in para No. 2 of the plaint which for facility of reference is hereunder reproduced, the plaintiffs claim themselves to be legal heirs of Smt. Sarupi.

Jas Ram (deceased)

|------------------------------------------|

Ami Lal Bhallu

(deceased) (deceased)

:

|-------------| Har Sarup (deceased)

Sarupi(now Chhoto Satyabir

(deceased) (deceased)

|-------------------------------------------|

Nimbo Bhateri Jehro Rukman

(deceased) :

|---------------------------------|

Ranbir Dalbir Ramrati

(deceased)

3 Challenging the judgment and decree dated 1,3.1984, it has been averred by the plaintiffs that the same came to their knowledge just few days before the filing of the suit when they visited village Hadwa on the demise of Smt. Sarupi. Assailing the decree it has been stated that the same has been procured by fraud and impersonation. According to the plaintiffs, Smt. Sarupi neither signed nor filed any written statement in the suit filed by the defendant (now under challenge) nor she appeared or made any statement in the Court. Even otherwise, the very basis of the suit was, in fact, a made up claim as the defendant had no relation with Smt. Sarupi and thus a question of family settlement could not arrive at all.

4. Defendant vide written statement controverted the material averments made in the plaint as well as took up few preliminary objections, namely; that the suit for mere declaration without seeking possession is not legally maintainable; that the suit of the plaintiffs is bad for mis-joinder and non-joinder of necessary parties; that the plaintiffs have no cause of action against the defendants as Smt. Sarupi was absolute owner of the suit land that the suit has not been properly valued for the purposes of court fee and jurisdiction. On the pleadings of the parties, following issues were framed:-

1) Whether the plaintiffs are the sole heirs of Sarupi deceased, if so, to what effect ? OPP.

2) Whether the impugned decree is illegal, void and not binding on the plaintiffs for the reasons given in the plaint ? OPP.

3) Whether Sarupi deceased executed a valid Will in favour of the defendant, if so, to what effect ? OPD.

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

5) Whether the suit is bad for non-joinder and mis-joinder of necessary parties ? OPD.

6) Whether the plaintiffs have no cause of action ? OPD.

7) Whether the plaintiffs are estopped from filing the present suit by their own act and conduct ? OPD.

8) Whether the suit has not been properly valued ? OPD.

9) Relief.

5. Learned Sub Judge decided issue No. 1 in favour of the plaintiffs whereas issues No. 2 and 3 were decided against the plaintiffs. Issue No. 4 was decided in favour of the plaintiffs holding that they being co-sharers were deemed to be in possession of the suit and land and so a suit for mere declaration was maintainable. However, it was held that since Smt Sarupi executed a valid Will in favour of the defendant, the plaintiffs have no cause of action to file the present suit. Issue No. 5 was decided against the defendant. Issue N