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Court No. - 6

RESERVED

A.F.R.

Case :- SECOND APPEAL No. - 482 of 2008

Appellant :- Smt. Ramwati

Respondent :- Smt. Shakuntala

Counsel for Appellant :- Prakash Gupta,Ashish Gupta,

K.D.Tripathi, Mohd Mohiuddin Siddiqui

Counsel for Respondent :- Arun Kumar Singh

Hon'ble J.J. Munir,J.

1.

This is a plaintiff’s appeal arising from a suit seeking to

declare a decree passed in an earlier suit inter partes void and

for recovery of possession.

2.

Original Suit No.378 of 1993 was instituted by Smt.

Ramwati against Smt. Shakuntala and her two minor sons

Harbansh and Harchand, represented by Smt. Shakuntala, their

mother and guardian ad litem, before the Civil Judge of Bijnor

(now Civil Judge (Sr. Div.)) on 11.05.1993 for declaration and

possession in the terms set out hereinafter. Smt. Ramwati shall

hereinafter be referred to as “the plaintiff”, whereas Smt.

Shakuntala and her two sons Harbansh and Harchand, who

were arrayed as defendant nos.1, 2 and 3 to the suit and are

respondent nos.1, 2 and 3 to this appeal, shall be collectively

referred to as “the defendants”. In the event of an individual

reference, the defendant shall be called by his/her name.

3.

It is the plaintiff’s case that her father, the late Bhikki

Singh was owner in possession of properties set out in

Schedules A, B and C to the plaint. The plaintiff’s father passed

away on 13.01.1983. The plaintiff is Bhikki Singh’s lone child

and the sole heir entitled to inherit his estate. Bhikki Singh had

married once in his lifetime and his wife was Smt. Khajano.

Smt. Khajano passed away during the lifetime of Bhikki Singh.

Smt. Shakuntala, defendant no.1 to the suit, never married

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Bhikki Singh. She was married to one Shyamlal, whom she

deserted, and thereafter, stayed with a number of men. For a

period of about 2-3 years past, she had been staying with the

late Bhikki Singh. Smt. Shakuntala had brought along with her

to Bhikki Singh’s home, her sons Harbansh and Harchand. The

plaintiff stays with her husband at Ghaziabad. Though not

specifically said, it seems that Bhikki Singh would stay at

Village Nawabpura, Pargana and Tehsil Najibabad, District

Bijnor.

4.

It is the plaintiff’s case that after her father’s death, she

came over to her parental home and asked the defendants to

vacate her father’s house. The defendants refused. Thereupon,

the plaintiff instituted Suit No.162 of 1985, Ramwati vs.

Shakuntala and others, which appears to be a suit for

possession after terminating the defendants’ licence. The suit

last mentioned was brought by the plaintiff against the

defendants to establish her claim and recover possession of the

property indicated in Schedule A, B and C to the plaint giving

rise to the present suit. The defendants had got their names

recorded over the agricultural land, part of the suit property.

5.

The plaintiff was prosecuting Original Suit No.162 of 1985

through Mr. Gulzar Husain, Advocate. Pending the suit, Smt.

Shakuntala proposed an amicable settlement in terms that Smt.

Shakuntala would acknowledge the plaintiff’s right to the

property mentioned in Schedules A, B and C to the plaint giving

rise to the present suit and file a compromise to the above

effect. The plaintiff is an illiterate woman hailing from a rural

background. Taking it to be a document, where the defendants

had acknowledged her right to the suit property, she appended

her mark of thumb to the terms of compromise proposed to be

filed in Suit No.162 of 1985. Thereupon, Smt. Shankutala,

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defendant no.1 and her pairokar, one Harswaroop engaged a

new Counsel on her behalf, who filed the aforesaid

compromise, thumb marked by her, on 04.01.1992, practising

fraud upon the plaintiff. The plaintiff learnt it by rumour on

04.01.1992 (which appears to be a mistaken mention for the

date ‘04.02.1992’ on account of a clerical error in the plaint)

about the decree secured fraudulentl