Adarsh Kumar Goel, J.@mdashThe appellant-plaintiff filed suit for possession alleging that a decree was passed in her favour on 10,4,1972 in Suit
No. 227/A by Sub Judge, Ist Class, Rajpura but defendants (who are half-blood brothers of the plaintiff) wanted to take forcible possession of the
suit land from her even though, temporary injunction was granted in her favour by the trial court and the lower appellate court but the High Court
had ordered status quo, on account of which the defendants dispossessed the plaintiff, which should be restored to her.
2. Case of the plaintiff is that the dispute was about the estate of Jaswant Singh, father of the parties-plaintiffs being daughters from Dalip Kaur and
defendants being sons from Kartar Kaur. Jaswant Singh died on 15.6.1952. While half share of the property was mutated in favour of Dalip Kaur
and the other half was mutated in favour of minor sons of Kartar Kaur. There was a compromise on which 200 bighas and 1 biswa of land was
given to Dalip Kaur for maintenance for life and a sum of Rs. 5000/- was given to her for marriage of her two daughters. This was recorded in
order dated 19.6.1954, Ex. P.1 passed by Financial Commissioner, Pepsu. Dalip Kaur died in the year 1962 and her land was mutated in favour
of the defendants. However, the plaintiff filed a suit on the basis of which a decree is said to have been passed for 101 bighas and 9 biswas of
land. Decree Ex.P10 was passed on the basis of admission by the defendants.
3. In their written statement, the defendants submitted that previous decree dated 10.4.1977 has vitiated by fraud. Neither the decree was duly
passed nor defendants were ever served or appeared, though defendants had signed some blank papers, at the instance of plaintiff and her
husband which were with the plaintiff. The plaintiff was not in possession and though injunction was granted by the courts below, the High Court
granted order of status quo and plaintiff withdrew the suit.
Following issues were framed:-
1. Whether the plaintiff is the owner of land in suit? OPP
1a. Whether any decree dated 10.4.1972 was passed in favour of plaintiff. If so, to what effect? OPP.
Ib. If issue No. 1A is proved whether the decree was obtained by fraud? OPD
Ic. Whether the suit is barred under Order 2 Rule 2 CPC? OPD
Id. Whether the plaintiff is estopped to file the suit as alleged? OPD
Ie. Whether the suit is within time? OPP
Relief.
4. The plaintiff inter alia relied on statement of objections filed by defendants being Ex.P1 in a suit filed by Baljinder Singh etc. against Sumitra Devi
being suit No. 414 dated 28.11.1964 decided on 14.2.1975 by Sub Judge Ist Class, Rajpura wherein it was stated that 50 bighas of land from the
share of all the plaintiffs; in all being 200 bighas of land, was transferred to Harminder Kaur and Harjinder Kaur. PW-2 Sham Lal, Advocate and
PW3 Sarup Chand Gupta, CJM were also examined.
5. Plaintiff also relied on admission by the defendants in their return filed before the Collector, Agrarian, Rajpura under the provisions of the Punjab
Land Reforms Act, 1972 being Exhibits P4 and P6 and affidavits dated 3.10.1973 Exhibits P5 and P7 Ex.P4 is a copy of statement signed by
Jagjit Singh s/o Jaswant Singh, defendant wherein it is mentioned that Harjinder Kaur, daughter of Jaswant Singh was given land by way of decree
dated 10.4.1972.
6. Order dated 11.6.1976 Ex.P2 noted that a copy of judgment in Harjinder Kaur v. Jagjit Singh was filed on record though the same was ignored
being benami transaction.
7. Written statement Ex.P6 dated 25.3.1972 is suit No. 227/A was also proved.
8. DW-3 Supinder Singh admitted that their father had died and their stepmother Dalip Kaur was given land measuring 200 kanals by way of
compromise and after the death of Dalip Kaur, her inheritance was sanctioned in fevour of defendants exclusively. DW-1 Dider Singh, Copyist
admitted that judgment dated 10.4.1972 is suit No. 227/A was duly signed,
9. The trial Court decreed the suit. It was held that decree dated 10.4.1972 was a valid decree and was not vitiated by fraud. The defendants
admitted and relied upon proceedings in separate proceedings (findings of the trial Court under Issue Nos. 1, 1A and 1B are in paras 6 to 25).
10. On appeal, decree of the trial Court was reversed and suit of the plaintiff-appellant was dismissed. It was held that plaintiff could not inherit
from Dalip Kaur as she was a limited owner under compromise Ex.P1 and her estate was inherited by the defendants on her death in the year
1962, It was further held that since judgment and decree and order dated 6.4.1972 were not signed by the Presiding Officer initially, the decree
was a nullity and in any cases, decree was not a mode of transfer of property and, thus, admissions made by the defendants in other proceedings
were erroneous. It was also observed that the decree was to defeat the provisions of Land Reforms Law. Hence this appeal,
11. When this appeal came up for hearing on 19.9.1980, it was noticed that there were two reports on record Exhibit D2 and D2/A to the effect
that the judgment and decree dated 10.4.1972 did not bear the signatures of the Presiding Officer when application for copy of the same was filed
but in original record, signatures on both the said documents appeared though they were not similar. A direction was issued to the District and
Sessions Judge, Patiala to conduct an enquiry and submit a report to this court. The District Judge, Patiala submitted this report on 27.2.1981 to
the effect that by some omission, the judgment and decree was not signed nor zimini order dated 6.4.1972 summoning the defendant was signed
by the Presiding Officer and the same was got signed by the record-keeper when it came to his notice that judgment and decree remained
unsigned and there appeared to be a mistake by the concerned official of the court.
12. Learned counsel for the appellant submitted that the trial Court held that a decree had Been passed in favour of the appellant-plaintiff which
was proved not only by the said judgment and decree and pleadings but also by other record and admission of the defendants, He submitted that
the lower appellate court has failed to refer to the said record and erroneously ignored the said decree. He further submitted that in view of the
report of the District & Sessions Judge, the fact remains that a decree was duly passed and even if the signatures were not put at the same time but
were put subsequently when it came to notice, the same remained unsigned by mistake, the rights of the plaintiffs under the said decree have to be
honoured. He submitted that merely because decree was signed subsequently, did not per se prove any fraud and thus, the said decree was not
vitiated. It was further submitted that plaintiff being daughter of Dalip Kaur who died in the year 1962 and who before her death had become
absolute owner on account of which plaintiff had right to inherit. He submitted that following substantial questions of law arose for consideration :-
1. Whether Dalip Kaur who died in the year 1962 and had acquired property under compromise Ex.P1 became absolute owner after coming into
force of Hindu Succession Act and on her death in the year 1962, the plaintiff inherited land owned by her mother?
2. In any case, whether rights of the plaintiffs recognised by the defendants who are half blood brothers of the plaintiffs by way of admission in a
suit by filing written statement Ex.P6 leading to passing of decree Ex.P10 could be subsequently denied and whether such a decree could be
ignored merely on the ground that the same was not signed when passed but signed later when omission of signatures of the Presiding Officer was
pointed out particularly when the defendants admitted the existence and effect of the said decree and relied upon the same in proceedings under
the Land Reforms Act as shown by Exs.P1, P2 and P4 to P7?
13. Learned counsel for the appellant submitted that initially, substantial questions of law were not framed but in view of judgment of the Apex
Court in Kulwant Kaur v. Gurdial Singh Mann (2001)128 PLR 492 substantial questions of law were being proposed during the course of
hearing,
14. After hearing learned counsel for the respondents, I am satisfied that above substantial questions of law arise for consideration,
15. I have heard learned counsel for the parties on the above questions and have gone through the record.
16. Learned counsel for the respondent is unable to show as to how the decree dated 10.4.1972 can be held to be vitiated by fraud merely
because the same was not initially signed, though defendants themselves had admitted the existence of the said decree and rights of the plaintiffs in
proceedings under the Punjab Land Reforms Act, 1972.
17. The lower appellate court has erred in law by observation that admission in other proceedings was proved to be wrong. The lower appellate
court was also in error in holding that when there was pre-exiting right of the plaintiffs, how a decree on an admission could be held to be invalid or
could be held to be defeating the provisions of Punjab Land Reforms Act or be against public policy. The lower appellate court was also in error
of observing that the decree could not be a mode of transfer. Plaintiffs and defendants are brothers and sisters and within the family, the rights of
the parties could be recognised by way of family settlement which could be even oral and once defendants admitted in written statement Ex.D6
that plaintiffs were the owners of the suit property and on that basis, decree Ex.P10 was passed, the said decree could not be held to be in any
way erroneous.
18. Though, learned counsel for the appellant submitted that Dalip Kaur became full owner of the property given to her for maintenance by way of
compromise Ex.P1, in view of judgment of the Apex Court in Vaddevoyina Tulasamma and Ors. v. Vaddevoyina Seshareddi (dead) by LRs. AIR
1977 SC 1944 in view of admission by the respondent-defendants and decree dated 10.4.1972, this question need not be gone into and for this
reason, was considered unnecessary by the learned counsel for the appellant, though raised in the grounds of appeal.
19. The fact remains that the appellant acquired rights in the suit property by way of inheritance on death of her mother Dalip Kaur who had
acquired rights of the property under compromise Ex.P1 and by virtue of provisions of the Hindu Succession Act, 1956. In any case, the rights of
the appellant were duly admitted in written statement Ex. P6 in suit No. 227/A decided on 10.4.1972.
20. Decree in Suit No. 227/A could not be held to vitiated by fraud merely because initially the same was not signed. In view of the report of the
District Judge dated 27.2.1981, as per direction of this Court, omission to sign the decree was merely a mistake of the concerned officials. The
view taken by the lower appellate court is clearly unsustainable in law. Substantial questions of law are accordingly, answered in favour of the
appellant.
The appeal is allowed. The decree of the lower appellate court is set aside and that of the trial court is restored.
