Santosh Vs.
Jagat Ram & ANR. [2010] INSC 95 (8 February 2010)
Judgment "REPORTABLE"
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1881 OF
2008 Santosh .... Appellant Versus Jagat Ram & Anr. .... Respondents
V.S.
SIRPURKAR, J.
This is
an appeal by a helpless widow, who has become a prey of the greed of her own
elder brother in law and is deprived of her properties in a fraudulent manner.
As per the pleadings, Smt. Santosh (appellant herein), the original plaintiff,
lost her husband Chander Pal in the year 1985. She is issueless. Chander Pal,
at the time of his death, owned a land to the extent of 36 kanals 7 marlas out
of the total land measuring 80 kanals 1 marla comprised in khewat No. 64
khatoni No. 96 and 97 as per Jamabandi for the year 1975-76 situated at Village
Kotia, Tehsil and District Mahendragarh. After losing her husband in the prime
of youth, she had nobody to look forward to. Respondents are the sons of one
Daya Ram, who was the real brother of Chander Pal. Appellant was approached by
Daya Ram (DW-4), who convinced her to accompany him to Courts of Mahendragarh,
so that the mutation of the properties inherited by her from her husband could
be made and the properties could be recorded in her name. Believing him, she
accompanied him to Mahendragarh, where her thumb impressions were obtained on
3-4 papers. She was also asked to say `yes' if she was asked any question by
the authorities. She believed in good faith that the mutation will be done and
the properties would be recorded in her name. All this happened on 26.3.1985.
About two and half months, before filing of second suit the respondents
(original defendants) and her brother in law Daya Ram (DW-4) started
interfering with her possession and insisted that there was a decree passed in
their favour in respect of her lands. She, therefore, filed the present suit
for declaration to the effect that she was owner in possession of the land in
respect of the properties mentioned above and the so-called decree dated 26.3.1985
shown to have been suffered by her in favour of the respondents-defendants is
illegal, bad and was a result of fraud and, therefore, not binding upon her at
all.
2. The
suit was contested by the respondents-defendants. They claimed that the decree
in question was legal and there was no question of fraud and that in fact, the
said decree was as per the family settlement.
They also
pleaded that the suit was barred by limitation and as such, the suit was liable
to be dismissed. The evidence was led on behalf of the appellant-plaintiff in
support of her plea, wherein she examined herself, while on behalf of the
respondents-defendants, four witnesses were examined including one Dharam Singh
(DW-1), Record Keeper, one Ram Singh (DW-2), Bailiff, one S.K. Joshi (DW-3),
Advocate and Daya Ram (DW-4) himself. The Trial Court accepted the evidence of
the appellant- plaintiff and disbelieved the witnesses examined on behalf of
the respondents-defendants and while decreeing the suit, returned a finding
that the decree dated 26.3.1985 was a result of a fraud.
3. An
appeal came to be filed by the respondents-defendants against the above order,
which was allowed. The Appellate Court came to the conclusion that there was no
fraud played and the consent decree dated 26.3.1985 was a good and a valid
decree. The Appellate Court also held that the suit filed by the
appellant-plaintiff was barred by time.
4. The
appellant-plaintiff field a Second Appeal before the High Court, which was
dismissed in limine. This is how the appeal has come before us.
5. Shri
V.C. Mahajan, Learned Senior Counsel appearing on behalf of the appellant,
firstly pointed out that the judgment by the High Court in the Second Appeal
was a classic example of non-application of mind. He pointed out that the
consent decree dated 26.3.1985 was a classic example of fraud. The Learned
Senior Counsel, in support of his plea, pointed out that the plaint is dated
26.3.1985; It is filed on 26.3.1985; The Written Statement filed by the
appellant is also dated 26.3.1985; The appellant was examined on 26.3.1985 and
the decree was also passed on 26.3.1985. The Learned Senior Counsel wondered as
to how all this could have happened on one and the same day. He pointed out
that there was no question of the appellant being summoned by the Court or she
remaining present in pursuance of those summons. The Learned Senior Counsel
took us through the plaint in that suit, which was registered as Civil Suit No.
253 of 1985. According to the Learned Senior Counsel, as if all this was not
sufficient, later on, an application was filed, purporting to be an application
under Section 148-A of the Code of Civil Procedure (CPC) on 30.9.1985. This
application was filed with the signatures of the same Advocate S.K. Joshi, who
had appeared on behalf of the appellant in the earlier proceedings and had
filed a Written Statement of consent. It is then pointed out by the Learned
Senior Counsel that a notice was issued by the Court of Sub-Judge, First Class
to the appellant and was served through a bailiff and in pursuance of that
notice, she came and gave a statement before the Court on 23.11.1985 that she
did not intend to file a suit, challenging the consent decree. The Learned
Senior Counsel then pointed out that there was no question of any proceedings
being instituted on the basis of a so-called caveat under Section 148-A of the
CPC nor was there any question of the Court issuing any notice on the basis of
a caveat.
He also
pointed out further that all this was nothing but a towering fraud played upon
the appellant. He pointed out that it is throughout the case of the appellant
that she never appeared before any Court nor did she depose before the Court
and that she is an illiterate lady knowing nothing about the intricacies of law
and the procedures of the Court. The Learned Senior Counsel further argued that
though the suit was rightly decreed by the Trial Court holding that the earlier
decree obtained in the year 1985 was a fraud upon the appellant, the Appellate
Court has, in a most casual manner, allowed the appeal filed by the
respondents-defendants and chose to believe the evidence of the lawyer, which
also was a classic example of non-application of mind on the part of the
Appellate Court.
Learned
Senior Counsel further argued that as if all this was not sufficient, the High
Court, in a most casual manner, has chosen to dismiss such Second Appeal,
involving the substantial questions of law, in limine without even considering
the same. From this, the Learned Senior Counsel argued that the respondents
herein have succeeded in perpetrating their fraud against the appellant.
6. The
argument was opposed by Shri T.S. Ahuja, Learned Counsel, appearing on behalf
of the respondents on the ground that the case of the respondents was well supported
by the fact that the lawyer Shri S.K. Joshi had stepped into the witness box in
the subsequent suit and had reiterated that the appellant had consented and
instructed him and it was only as per the instructions of the appellant that he
had prepared her Written Statement in the first suit. The Learned Counsel also
pointed out that Shri Joshi (DW-3) also reiterated about the appellant's
statement made in the caveat proceedings. The Learned Counsel further argued
that even Shri R.S. Yadav, Advocate, who appeared in the Trial Court for the
appellant herein, offered himself as a witness by way of additional evidence
and he had stated that the Criminal Petition No. 7-4 dated 28.9.1994 under
Section 125 of the Criminal Procedure Code (Cr.P.C.), which was decided on
12.8.2000 was drafted as per the instructions given by the appellant Santosh
and that the appellant had put her thumb impression on this petition which was
Exhibit AX. From this, the Learned Senior Counsel claimed that even on
28.9.1994, the land was not in possession of the appellant Santosh and,
therefore, the story of the appellant that she came to the Court when her
possession was being disturbed, is a myth and as such, the second suit was
obviously barred by time. The Learned Counsel further reiterated that this was
correctly appreciated by the Appellate Court and the High Court and they were
correct in dismissing the suit as barred by time. He also pointed out that
during the pendency of the appeal before the Appellate Court, the respondent No.
1 had filed an application under Order 6 Rule 17 CPC for amendment, pointing
out that after the first decree in Civil Suit No. 253 of 1985, the
respondents-defendants had constructed a pucca well and also installed a
pumping set and obtained electric connection from the Electricity Board and the
appellant Santosh did not object to the same. The Learned Counsel fairly
admitted that this application was, however, dismissed by the Additional
District Judge.
7. The
basic questions in this appeal would be as follows:- (i) Whether a fraud was
played against the appellant herein for obtaining the decree in Civil Suit No.
253 of 1985? (ii) Whether the second suit filed by the appellant was within
limitation?
8. We
have very carefully perused the records of the Courts below since the judgment
of the High Court is laconic. Beyond mentioning the facts on the basis of the
pleadings, there is nothing in the judgment. It seems to have been passed on
the incorrect basis of the absence of substantial question of law. Again the
High Court has given a one-line finding that the suit filed by the appellant
was beyond the period of limitation, since it was filed in the year 1990,
seeking to set aside the decree passed in the year 1985. Ordinarily, we would
have remanded this matter back to the High Court. However, considering the time
taken so far in finalizing the rights of the parties, we proceed to decide this
appeal on merits.
9. The
Trial Court, after correctly framing the issues, took the stock of all the four
witnesses, namely, Dharam Singh (DW-1), Record Keeper, Ram Singh (DW-2),
Bailiff, S.K. Joshi (DW-3), Advocate and Daya Ram, the father of the
respondents-defendants. The Court answered the first three issues in favour of
the present appellant. Those issues pertain to:- (i) Ownership and joint
possession of the suit land of the plaintiff? (ii) The decree passed on
26.3.1985 in Civil Suit No. 253 of 1985 being nullity.
(iii)
Recording the mutation No. 1093 dated 6.11.1985 being illegal and not binding
on the rights of the plaintiff? Taking stock of the evidence, the Trial Court
took note of the improved version on the part of Daya Ram (DW-4) that the
father of the appellant had demanded Rs.20,000/- and had then agreed to give
share of Chander Pal to the respondents-defendants and that the said amount was
paid through one Mam Chand, cousin brother of Daya Ram (DW-4). The Trial Court
rightly noted that this was not only an improvement, but said Mam Chand,
through whom the amount was given, was never examined. The Trial Court also
referred to the admission by Daya Ram (DW-4) that no money was ever given to
the appellant for household expenses and that she had no source to maintain
herself. From this, the Trial Court correctly deduced that the person who is
not having any source to maintain himself/herself, could not part with his/her
landed property as well in the manner that the appellant did. The admissions by
S.K. Joshi (DW-3), Advocate to the effect that he and Shri K.L. Yadav,
Advocate, who appeared for the appellant in the earlier suit and for the
respondents- defendants in the present suit before the Trial Court, used to sit
on the same seat and were the partners in the same profession having a common
Clerk. The Trial Court also noted the arguments on the side of the respondents
to the effect that Daya Ram (DW-4) was looking after the appellant and that the
appellant had filed a Written Statement in the first case, the contents of
which were well known to her and that she admitted the same as correct, as asserted
by S.K. Joshi (DW-3), Advocate, in his evidence. Furthermore, the Trial Court
also noted the facts about the Caveat having been filed by the respondents
herein, the reply to which was filed by the appellant-plaintiff vide Exhibit
DW3/D, wherein she had averred that she had voluntarily suffered the impugned
judgment and decree and that she did not challenge the same. The Trial Court
rightly found the story of payment of Rs.20,000/- to be a myth, since it was
nowhere stated in the pleadings also. Further, the Trial Court also noted that
the appellant, who was an issueless widow and an illiterate lady, was not at
all being supported by Daya Ram and Daya Ram being her elder brother in law,
was in a position to dominate and take advantage of her ignorance and
illiteracy. The Trial Court also inferred correctly from the fact that a Caveat
was filed in the year 1985 itself and the appellant was again paraded to make a
statement that she did not intend to challenge the decree. As regards the
question of limitation, the Trial Court noted that the cause of action arose
when respondents started interfering with ownership and possession of the
appellant-plaintiff over the suit land about two and half months before filing
of the second suit and started asserting about there having a decree in their
favour in respect of the suit land.
10. As
against this, when we see the judgment of the Appellate Court, there are number
of material facts in the evidence, which have been ignored by the Appellate
Court. The basic fact which has been ignored by the Appellate Court is that in
the earlier Civil Suit No. 253 of 1985, the plaint was filed on that day,
Written Statement was also filed on the same day, the evidence of the
plaintiffs and the defendant (appellant herein) was also recorded on the same
day and the judgment was also made ready alongwith a decree on the same day.
This, by itself, was sufficient to raise serious doubts in the mind of the
Courts. Instead, the Appellate Court went on to believe the evidence of Dharam
Singh (DW-1), Record Keeper, who produced the files of the summons. One
wonders as to when was the suit filed and when did the Court issue a summons
and how is it that on the same day, the Written Statement was also ready, duly
drafted by the other side lawyer S.K. Joshi (DW-3). Significantly enough, the
Appellate Court has also relied on the evidence of S.K. Joshi (DW-3), who
deposed about the appellant having come to him and instructed him to prepare
the Written Statement (Exhibit DW3/A). In his evidence, S.K. Joshi (DW-3) has
admitted specifically that there was a common clerk between him and the counsel
for the plaintiff in the earlier suit and they used to sit on the same Takhat
(seat). An impossible inference was drawn by the Appellate Court that the
appellant was telling a blatant lie when she asserted that she did not
voluntarily suffer a decree. The Appellate Court has also mentioned about the
File No. 5 dated 30.9.1985, which would be hardly about six months after the
said decree passed on 26.3.1985, which pertain to the Caveat field under
Section 148-A of the CPC. We put a specific question Shri Ahuja, Learned
Counsel, appearing on behalf of the respondents, as to whether in Haryana, on
the basis of Caveats, could summons be issued by the Civil Courts, so as to be
served on the other side through a Bailiff of the Court. The Learned Counsel
was unable to support any such proceeding. As if all that was not sufficient,
appellant was again brought to the Court in pursuance of the so-called summons served
on her through Bailiff in the proceedings under Section 148-A of the CPC and
her statement was also got recorded. It is not known as to how a Caveat
application was got registered and a summons was sent on the basis of a Caveat
application, treating it to be an independent proceedings. Such is not the
scope of a Caveat under Section 148-A of the CPC. At least Shri Ahuja, Learned
Counsel, appearing on behalf of the respondents could not support such a
finding and he fairly stated that he was unaware of any such procedure. Nothing
has been shown to us in the nature of an order passed by the Court on the basis
of the so-called Caveat. We are convinced that this was nothing, but a very
poor attempt to get the fate of the appellant sealed by getting her statement
recorded. Instead of drawing the correct inferences, the Appellate Court went
on to record the impossible findings. The Appellate Court seems to have been
more disturbed by the fact that the appellant had challenged the integrity of
the counsel for the parties and asked a question as to why should the counsel
for the respondent prepare a Written Statement against the wishes of the
respondent. The Appellate Court went on to say:- "Merely because both the
counsel sit on the same bench and have a common clerk and that the suit was
decided on the same day when it was present in the Court, it would not, by
itself, prove that the judgment and decree were obtained by fraud and
misrepresentation."
To say
that `we are surprised', would be an understatement. To support this perverse
finding, the Appellate Court went on to record the findings regarding the
Caveat and the statement of the appellant recorded in those proceedings (?). We
are fully convinced that this was nothing, but a towering fraud played upon an
illiterate and helpless widow, whose whole inherited property was tried to be
grabbed by Daya Ram and/or the respondents herein.
11. Very
unfortunately, all this has escaped the notice of the High Court, who passed a
very casual judgment without being bothered about these glaring facts. We are
of the firm opinion that a whole suit No. 253 of 1985, decree passed thereupon
on 26.3.1985 and the subsequent Caveat proceedings were nothing but a
systematic fraud. There cannot be a better example of a fraudulent decree. We
are anguished to see the attitude of the Court, who passed the decree on the
basis of a plaint and a Written Statement, which were filed on the same day. We
are also surprised at the observations made by the Appellate Court that such circumstance
could not, by itself, prove the fraudulent nature of the decree.
12. A
fraud puts an end to everything. It is a settled position in law that such
decree is nothing, but a nullity. It has come in the evidence that when the
respondents herein started disturbing the possession of the appellant and also
started bragging about a decree having been obtained by them, the appellant
chose to file a suit. In that view, her suit filed in 1990 would be absolutely
within time. The casual observation made by the High Court that her suit would
be barred by limitation, is also wholly incorrect.
13. On
the basis of the conclusions that we have reached above, we proceed to set
aside the judgment of the High Court, as well as of the Appellate Court and
restore the judgment of the Trial Court. The appeal is allowed with the costs
estimated at Rs.25,000/-.
........................................J.(V.S. Sirpurkar)
...........................................J.(Surinder Singh
Nijjar)
New Delhi;
February 8, 2010.
Digital
Performa Case No. : Civil Appeal No. 1881 of 2008 Date of Decision : 8.2.2010
Cause Title : Santosh Jagat Ram & Anr.
Date of
CAV : 28.1.2010 Coram : Hon'ble Mr. Justice V.S. Sirpurkar Hon'ble Mr. Justice
Surinder Singh Nijjar Judgment delivered by : Hon'ble Mr. Justice V.S.
Sirpurkar Nature of Judgment : Reportable. IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 1881 OF 2008 Santosh .... Appellant
Versus Jagat Ram & Anr. .... Respondents Dear brother, Draft judgment in
the above matter is sent herewith for perusal and kind consideration.
(V.S.
SIRPURKAR) 4.2.2010 HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR IN THE SUPREME
COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1881 OF 2008
Santosh .... Appellant Versus Jagat Ram & Anr. .... Respondents
DELIVERED
BY:
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