JUDGMENT :

Pankaj Jain, J. (Oral)

1. Plaintiff is in second appeal.

2. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the appellant as the plaintiff and the respondent as the defendant.

3. Plaintiff filed suit seeking decree of declaration to the effect that decreed dated 06.09.1974 passed in Civil Suit No.770 of 1974 titled as Gawan Singh vs. Ram Bux' by the Court of Sub Judge, 2nd Class, Gurgaon is invalid, illegal and void.

4. Plaintiff filed suit claiming that he is son of Ram Bux son of Umrao, who was co-owner in agricultural land bearing Rect. No.26, Killa No.7, admeasuring 8 Kanals situated in the revenue estate of Sohna, Tehsil and District Gurgaon. Ram Bux mortgaged suit land with one Beedhu son of Dulli. Beedhu sold away his mortgagee rights to the plaintiff and thus the plaintiff is owner in possession of the suit land. Plaintiff further claimed that it has come to his knowledge that there is a decree being claimed by defendant, dated 06.09.1974 in his favour. Defendant claims the decree to have been suffered by Ram Bux. The said decree is result of fraud and misrepresentation. Defendant played fraud upon the process of law. It was claimed that father of the plaintiff died prior to 06.09.1974 i.e. when the suit was instituted. Someone else misrepresented himself to be Ram Bux that led to passing of the decree.

5. Suit was contested by the defendant. Mortgage of the suit land with Beedhu and the sale of the mortgagee rights in favour of the plaintiff, were denied. Title of the plaintiff was denied. It was claimed that father of the plaintiff namely Ram Bux and the defendant were close to each other and treated each other as brothers. Ram Bux, predecessor-in-interest of the plaintiff, suffered decree dated 06.09.1974 in favour of the defendant and the plaintiff being successor of Ram Bux was bound by the same. It was further claimed that Ram Bux himself was present in the Court and was identified by Shri M.C. Aggarwal, Advocate.

6. On the basis of the pleadings of the parties, Court of First Instance framed the following issues :

"1. Whether the decree dated 6.9.74 in civil suit No.770 of 1974 titled as Gawan Singh Vs. Ram Bax passed by Sh.K.K. Chopra, Sub Judge Ist Class, Gurgaon, was obtained by fraud and misrepresentation as alleged, If so, to what effect ? OPP.

2. If the finding on issue No.1 is in the affirmative, whether the plaintiff has become owner of the suit land ? OP Parties.

3. Whether the plaintiff is in possession of suit land through the purchase of mortgage rights from Beedhu as alleged? OPP.

4. Whether the suit of the plaintiff is time barred? OPD

5. Whether the suit has not been filed by competent person Sh. Murari Lal, as next friend of the minor plaintiff? OPD.

6. Whether the plaintiff has concealed true facts and not come with clean hands? OPD.

7. Relief."

7. Trial Court after analysing the evidence came to the conclusion that the suit was instituted on 06.09.1974. It is claimed that the same day, Ram Bux appeared. He admitted the case of the plaintiff suffering statement on Oath before the Court. He was identified by none-else but Shri M.C. Aggarwal, Advocate who was representing Gawan Singh. Trial Court further found that Ram Bax and Gawan Singh belong to different castes and thus the plea raised in the earlier plaint that Gawan Singh was son of brother of father of Ram Bax was factually incorrect. Holding that the decree dated 06.09.1974 passed in Civil Suit No.770 of 1974 was result of fraud and that the plaintiff on the strength of revenue record has proved to be in established possession of the suit land, Trial Court decreed the suit.

8. In appeal preferred by the defendant, the aforesaid findings have been reversed by the Appellate Court holding that the ground on which the decree was assailed, was misrepresentation and not fraud. Plaintiff failed to prove that Ram Bax died prior to 06.09.1974 as claimed in the plaint. Plaintiff having failed to prove