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PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Parveen Kumar
Versus
Shiv Ram Alias Sheo Ram And Ors.
Regular Second Appeal No. 1013 of 1999,
Decided On : OCTOBER 14, 1999
REGISTRATION ACT, 1908 - SECTION 49 - CONSENT DECREE - REGISTRATION - EFFECT OF NON-REGISTRATION - ESTOPPEL - LIMITATION ACT, 1963 - SECTION 3 - SUIT FOR SETTING ASIDE CONSENT DECREE - LIMITATION - FRAUD - BURDEN OF PROOF - COLLUSION - EVIDENCE ACT, 1872 - SECTION 44 - ADMISSIONS - EFFECT.
Fact of the Case:
Jhutha Ram filed a suit for declaration that a consent decree dated 1.5.1982, by which he had transferred his property to Kishan Chand, was null and void on the grounds of non-registration and fraud. The trial court and the first appellate court dismissed the suit. Jhutha Ram died during the pendency of the first appeal, and his adopted son, Parveen Kumar, pursued the appeal.
Finding of the Court:
The High Court held that Jhutha Ram could not challenge the consent decree on the ground of non-registration because he was a party to the decree. He could only challenge the decree on the ground of fraud or collusion, or on the ground that the Civil Court had no inherent jurisdiction to pass the decree. The court also held that the suit was barred by limitation as Jhutha Ram had not filed the suit within three years of the date of the decree. The court further held that the alleged fraud was not proved on the record and that the suit appeared to be collusive between Jhutha Ram and Kishan Chand.
Issues: 1. Whether a consent decree requires registration under the Registration Act, 1908? 2. Whether a party to a consent decree can challenge the decree on the ground of non-registration? 3. Whether a suit for setting aside a consent decree on the ground of fraud is barred by limitation under the Limitation Act, 1963? 4. Whether the burden of proving fraud lies on the party alleging fraud? 5. Whether admissions made by a party can be used against him in a subsequent proceeding?
Ratio Decidendi: 1. A consent decree is a decree passed by a court with the consent of the parties. 2. A party to a consent decree cannot challenge the decree on the ground of non-registration. 3. A suit for setting aside a consent decree on the ground of fraud is barred by limitation if it is not filed within three years of the date of the decree. 4. The burden of proving fraud lies on the party alleging fraud. 5. Admissions made by a party can be used against him in a subsequent proceeding.
Final Decision: The High Court dismissed the appeal and upheld the judgment of the trial court and the first appellate court.
R.L.Anand, J.
1. We are dealing with the case of one Jhutha Ram. Some facts can be notice in the following manner:-
Jhutha Ram and Devi Sahai were the sons of Khema. Jhutha Ram was issueless. Devi Sahai had three sons by the names of Krishan Chand alias Kishan Lal, Shiv Ram and Laxmi Chand. Laxmi Chand had two sons by the name of Bhani Sahai and Ramesh Chand. Jhutha Ram suffered one consent decree dated 1.5.1982 bequeathing his property in favour of Kishan Chand alias Kishan Lal. Later on Kishan Chand suffered another consent decree dated 1.3.1984 and transferred 2/3rd share which he acquired from Jhutha Ram through consent decree dated 1.5.1982 in favour of Shiv Ram to the extent of 1/2 share and Bhani Sahai and Ramesh Chand to the extent of 1/2 share jointly. Later on Jhutha Ram filed the present suit for declaration to the effect that the consent decree dated 1.5.1982 allegedly suffered by him in favour of Kishan Chand is null and void on two counts - that the said decree has not been registered and in these circumstances no right, title or interest vested in Kishan Chand, as a result of which Kishan Chand could not transfer the title to Shiv Ram Bhani Sahai and Ramesh Chand. It may be mentioned here that Kishan Chand is defendant No. 1, Shiv Ram is defendant No. 2, Bhani Sahai is defendant No. 3 and Ramesh Chand is defendant No. 4. The suit was contested only by Shiv Ram Kishan Chand, in whose favour Jhutha Ram suffered the consent decree on 1.5.1982 admitted the allegations of Jhutha Ram that the decree was the result of fraud. The second ground of attack of Jhutha Ram to the decree dated 1.5.1982 is that a fraud was played upon him by Kishan Chand and as a result of that the decree dated 1.5.1982 is liable to be set aside and ignored. Shiv Ram, defendant No. 2 contested the suit mainly on the ground that there was no fraud. Rather the present suit filed by Jhutha Ram is collusive along with Kishan Chand. Second defence of Shiv Ram is that the suit of Jhutha Ram seeking declaration that the decree dated 1.5.1982 is null and void is not legally maintainable and moreover, the present suit, which was instituted in the year 1988 is hopelessly barred by limitation.
2 The trial Court on the above controversies framed the following issues:-
1. Whether decree dated 1 5.1982 passed in Civil Suit No. 118 of 1982 titled as Kishan Lal v. Jhutha is illegal, null and void and not binding on the rights of the plaintiff as alleged in plaint? OPP
2. If issue No. 1 is proved whether the decree dated 1.3.1984 titled as Shiv Ram v. Kishan Lal is liable to be set aside as alleged in the plaint? OPP
3. Whether suit is within time? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiff has no locus-standi to file the suit? OPD
6. Whether defendant No. 2 is entitled for special cost? OPD
7. Relief.
3. The parties led oral and documentary evidence in support of their respective cases and finally the suit of the plaintiff Jhutha Ram was dismissed by the trail Court. Then he filed the first appeal. During the pendency of the first appeal, Jhutha Ram died and his appeal was pursued by Parveen Kumar, who is the adopted son of Jhutha Ram. It may also be mentioned here that the name of the natural father of Parveen Kumar is Kishan Chand. It may further be mentioned her that Jhutha Ram adopted Parveen Kumar during the pendency of the suit.
4. The first Appellate Court also dismissed the appeal of Parveen Kumar, the adopted son of Jhutta Ram. Hence this Regular Section Appeal.
5. I have heard Mr. S.K. Mittal, Advocate, on behalf of the appellant and Mr. R.K. Aggarwal, Advocate, on behalf of the respondents.
6. The learned counsel for the appellant has given a serious challenge to the judgments and decrees of the Courts below mainly on three grounds - that Kishan Chand in the present suit admits that he obtained the decree as a result of fraud and in these circumstances the trail Court and the first Appellate
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