Consent decrees based on family settlements cannot be challenged on procedural grounds but only on proven fraud.

JUDGMENT
VIKRAM AGGARWAL, J.

This is plaintiff’s appeal against the judgment and decree dated 21.01.1993 passed by the Court of learned Additional District Judge, Rohtak allowing the appeal filed by the defendants against the judgment and decree dated 22.05.1992 passed by the Court of learned Additional Senior Sub-Judge, Jhajjar, District Rohtak, vide which the suit filed by the plaintiff had been decreed.

2. For the sake of convenience, the parties shall be referred as per their original status.

3. The plaintiff Bhagal and the defendants Bulla and Tara Chand were real brothers, all three being sons of Smt. Siriya and Jiya Ram. The plaintiff filed a suit for declaration to the effect that he is the owner in possession of 1/3rd share of land measuring 56 Kanals 02 Marlas (fully described in the plaint) situated in Village Kutani, Tehsil Jhajjar, District Rohtak (hereinafter referred to as the ‘suit property’) (at the relevant time, Jhajjar was in District Rohtak)and for a declaration to the effect that the judgment and decree dated 23.04.1987 passed in Civil Suit No.273 of 1987 titled as ‘Bulla Vs. Bhagal Etc.’ was illegal, null and void and not binding on the rights of the plaintiff. The claim of the plaintiff was that he had never appeared in any Court nor had he engaged any counsel or filed any written statement and that the thumb impressions of the plaintiff over the Power of Attorney and written statement were not his and somebody else had impersonated. It was claimed that the decree was illegal and that the same had been obtained with the collusion of the defendants. Further, with the collusion of the revenue authorities, Mutation No.1151 had been sanctioned on 14.11.1987 which again was not binding upon the rights of the plaintiff. Defendant No.1 Bulla contested the suit. However, defendant No.2 Tara Chand did not put in appearance and was accordingly proceeded against ex parte. However, he later appeared as DW-4 in the evidence of the defendants. In the written statement filed by defendant No.1, all averments were controverted and the decree was defended, having been validly passed.

4. From the pleadings of the parties, following issues were framed:-

“1. Whether the decree in suit No.273 of 1983, decided on 23.07.1984, by Sub Judge Ist Class, Jhajjar is null, illegal, void as alleged? OPP

2. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

3. Whether the suit of the plaintiff is barred by the principle of res judicata? OPD

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

5. Whether the plaintiff has no locus standi to file the present suit? OPD

6. Whether the defendants are entitled to special costs under section 35-A CPC as alleged? OPD

7. Relief.”

5. Parties led their respective evidence.

6. The trial Court decreed the suit and set aside the judgment and decree dated 23.04.1987. However, the appeal filed by the defendants was allowed and the suit filed by plaintiff was dismissed, leading to the filing of the present second appeal.

7. Learned counsel for the parties were heard.

8. It was submitted by learned Senior counsel representing the plaintiff that the First Appellate Court had erred in allowing the appeal and dismissing the suit. It was submitted that the judgment and decree passed by the trial Court was well reasoned and upon proper appreciation of facts and law and the same was erroneously set aside by the First Appellate Court.

8.1 It was submitted that there was no proof of service of the plaintiff in the previous litigation and, therefore, it stands proved that somebody else appeared in the matter before the Court. It was further submitted that the decree had been passed within one month from the institution of the suit which also raises suspicion.

8.2. Learned Senior counsel further submitted that there was no identification of the defendants therein when they appeared in Court nor was any identity proof retained on record.

8.3. Learned Senior cou