RSA No.651 of 2016

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No.651 of 2016 (O&M)

Date of decision: 02.08.2017

Hukam Singh (deceased) through LRs and another

... Appellants

Vs.

Phoolwati (deceased) through LRs

... Respondent

CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present:

Mr. M.L. Sharma, Advocate

for the appellants.

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RAMESHWAR SINGH MALIK, J. (ORAL)

Defendants are in regular second appeal against the impugned

judgment of reversal passed by the learned Additional District Judge, whereby

first appeal of the plaintiff was allowed and her suit for declaration, permanent

injunction and for joint possession was decreed, setting aside the judgment and

decree dated 06.02.2015 passed by the learned trial Court.

Brief facts of the case, as noticed by learned first appellate Court in

para 3 of the impugned judgment, are that the plaintiff was co-owner in

possession of the agricultural land situated within the revenue estate of village

Begumpur Khatola Distt. Gurgaon, as fully detailed and described in para 1 of

the plaint. It was alleged that in the month of July 2006, the defendants

approached the plaintiff and suggested that they would take care of her land, as

a licensee. Believing the representation made by defendants, the plaintiff put

Vishnu

2017.08.22 11:04

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.651 of 2016

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her thumb impressions on some documents. However, the plaintiff was shocked

to know that the defendants got registered a release deed in the office of Sub

Registrar, Gurgaon on 25.07.2006 regarding the suit land in their favour and

mutation No.3404 was also entered. By way of filing the present suit, the

plaintiff had challenged the impugned release deed and subsequent mutation to

be illegal, null and void, which were the outcome of fraud played by defendants

upon the plaintiffs. Initially the defendants appeared but later on, they did not

appear and were proceeded against ex-parte.

Defendants were served. They put appearance through their

counsel. However, thereafter counsel of the defendants stopped appearing and

consequently defendants were proceeded against ex-parte, vide order dated

11.11.2010 passed by the learned trial Court. Plaintiff led her ex-parte evidence.

After hearing learned counsel for the plaintiff and going through the ex-parte

evidence, learned trial Court dismissed the suit of the plaintiff vide its

impugned judgment and decree dated 06.02.2015. Feeling aggrieved, plaintiff

filed her first appeal, which came to be allowed by the learned Additional

District Judge vide impugned judgment and decree dated 19.01.2016. Hence

this regular second appeal at the hands of defendants.

Heard learned counsel for the appellants.

As noticed hereinabove, it was a case of no evidence, so far as the

appellants are concerned. They were proceeded against ex-parte. A bare

combined reading of the judgments and decrees passed by the learned Courts

below would make it crystal clear that learned trial Court fell in serious error of

law, while passing its judgment and decree dated 06.02.2015, which were

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2017.08.22 11:04

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.651 of 2016

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rightly set aside by the learned first appellate Court by way of impugned

judgment of reversal dated 19.01.2016. It is so said because the learned trial

Court miserably failed to appreciate true facts of the case, cogent evidence

available on record as well as the law laid down by the Hon’ble Supreme Court

and this Court.

Admittedly, plaintiff was in fiduciary relationship with the

defendants. It were the defendants who were in a dominating position, being in

possession of the suit property. Plaintiff was living in her in-laws family. The

only mistake she committed that she believed the defendants. She could not

doubt their malafide intention at the time when the defendant