Back
2011 Supreme(P&H) 87
2011(1) Law Herald (P&H) 549
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
RSA No.71 of 2011
Devi Lal
v.
Shokaran & Anr.
{Decided on 10/01/2011}
For the Appellant:Mr. K. S. Yadav, Advocate.
IMPORTANT POINT
Declaratory Suit--Maintainability--Plaintiff being out of possession of the suit land could not maintain a simple suit for declaration and permanent injunction only and should have also claimed relief of possession of the suit land.
Headnote:(A) Civil Procedure Code, 1908, O.12, R.6--Suit for challenging consent judgment & decree and the consequent mutation--Plaintiff alleged that he is owner in possession of the suit land and never relinquished his rights in the suit land in favour of defendants or anybody else--But the defendants obtained judgment and decree qua the suit land and got mutation sanctioned without consent and knowledge of plaintiff--Suit decreed--Appeal--Allowed--Now, this appeal by plaintiff--High Court found the plaintiff himself admitted that defendants are in possession of the suit land since long before the filling of the suit--PW5 also admitted that defendants are in possession of the entire Khewat for the last many years--Plaintiff herein was party in previous suit and he had knowledge to the said judgment and decree since beginning--Held, Plaintiff has been rightly non-suited by the lower appellate court because he has failed to prove his case and also the suit is barred by limitation and also the suit is not maintainable for declaration and permanent injunction only without claiming relief of possession of the suit land--Appeal dismissed in limine.
(B) Specific Relief Act, 1963, Ss.34 & 41(h)--Declaratory Suit--Maintainability--Plaintiff being out of possession of the suit land could not maintain a simple suit for declaration and permanent injunction only and should have also claimed relief of possession of the suit land--Suit for declaration and permanent injunction only is not maintainable in view of the mandatory provision of proviso to Section 34 and 41(h) of the Act.
(C) Limitation Act, 1963--Judgment and decree--Knowledge of--Judgment and decree dated 2/12/1993 have been challenged in the suit instituted on 29.9.1999 i.e. almost six years after the passing of the judgment and decree--The suit is, therefore, barred by limitation as the suit could be instituted within limitation period of three years--Contented that limitation period commenced from the date when the plaintiff acquired knowledge of the impugned judgment and decree just before filing of the suit--Cannot be accepted because he had knowledge of the said judgment and decree since beginning. The suit is, therefore, hopelessly barred by limitation.
(D) Evidence Act, 1872, S.47--Finger Print expert--Not examined--Adverse presumption--Plaintiff challenged the judgment and decree on the ground of impersonation--Plaintiff has not examined any finger print expert to depict that the said written statement and the statement recorded in the court in the previous suit had not been thumb marked by him. Science of finger print comparison is perfect science. The plaintiff could easily examine finger print expert to prove his case, but for reasons best known to him, the plaintiff has not examined any finger print expert. Consequently, very strong adverse presumption arises against the plaintiff.
Mr. L.N. Mittal, J. (Oral) :- Devi Lal-plaintiff who was successful in the trial court but has been non-suited in the lower appellate court is in second appeal.
2. The plaintiff alleged that he is owner in possession of the suit land measuring 20 Kanals 2 Marlas and 10 Kanals 5 Marlas. The plaintiff never relinquished his rights in the suit land in favour of defendants or anybody else. But the defendants have obtained judgment and decree dated 02.12.1993 from Sub-Judge First Class, Abohar in suit No.1015-1 dated 24.07.1993 titled as Sho Karan and another versus Devi Lal qua the suit land and got mutation No.927 sanctioned on the basis thereof without consent and knowledge of the plaintiff. In the instant suit, the plaintiff has challenged the aforesaid consent judgment and decree dated 02.12.1993 and the consequent mutation No.927 alleging the same to be illegal and null and void. The plaintiff sought declaration that he continues to be owner in possession of the suit land. The judgment and decree in question are said to have been obtained by fraud, misrepresentation and impersonation. Plaintiff herein (who was defendant in the previous suit) alleged that he never appeared in the previous suit nor admitted the claim of defendants herein (who were plaintiffs in the previous suit). Plaintiff also sought consequential relief for permanent injunction restraining the defendants from alienating the suit land in any manner to anybody and from interfering in the enjoyment of rights of plaintiff qua suit land.
3. Defendants while broadly controverting the plaint allegations, inter alia pleaded that the plaintiff is not in possession of the suit land but has not claimed the relief of possession thereof and therefore, suit for declaration only is not maintainable. The suit is also barred by limitation. On the basis of family settlement dated 06.07.1991, defendants are owners in possession of the suit land. Plaintiff herein who was defendant in the previous suit admitted the claim of the defendants herein (plaintiffs in the previous suit) by filing written statement dated 26.10.1993 and also by making statement to the same effect in the court on the same date in Civil Suit No.1015-1 dated 24.07.1993. Plaintiff herein himself appeared in the said previous suit and made the said statement in the court. Judgment and decree dated 02.12.1993 and the consequent mutation are legal and valid. All grounds pleaded by the plaintiff to challenge the same have been controverted. Various other pleas were also raised.
4. Learned Additional Civil Judge (Senior Division), Abohar vide judgment and decree dated 04.09.2009 decreed the plaintiff’s suit. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Ferozepur vide judgment and decree dated 13.10.2010 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiff has filed the instant second appeal.
5. I have heard learned counsel for the appellant and perused the case file.
6. Plaintiff challenged the judgment and decree dated 02.12.1993 on the ground that the same was obtained by impersonation. However, plaintiff has miserably failed to prove the said allegation. Written statement was filed in the previous suit on behalf of the plaintiff herein (who was defendant in that suit). Statement of plaintiff herein was also recorded in the said suit in the court. The said statement and the written statement purport to have been thumb marked by the plaintiff herein. However, plaintiff has not examined any finger print expert to depict that the said written statement and the statement recorded in the court in the previous suit had not been thumb marked by him. Science of finger print comparison is perfect science. The plaintiff could easily examine finger print expert to prove his case, but for reasons best known to him, the plaintiff has not examined any finger print expert. Consequently, very strong adverse presumption arises aga
