ZEHRO Vs. BALBIR SINGH

JUDGEMENT

(1.) Facts leading to the present regular second appeal are as under:-

(2.) Present appellant-plaintiff was owner in possession of the land in dispute, duly described in para no.1 of the plaint. Respondent-defendant is claiming right over the said land on the basis of judgment and decree dated 19.7.1976, allegedly passed in his favour and against the present appellant-plaintiff. However, the plea has been taken that the said decree is illegal, void and a result of fraud being committed upon the appellantplaintiff and that as respondent-defendant intends to take illegal possession of the suit land from appellant-plaintiff on the basis of said decree, the present suit has been filed for setting aside the said judgment and decree on the ground that no summons were ever issued by the Court to present appellant-plaintiff in that suit, i.e., Suit No.256 dated 17.7.1976; that respondent-defendant was never adopted by appellant-plaintiff and was never treated by her as her adopted son; that she is an illiterate lady and that she was having full faith on respondent-defendant, who is son of her one of the daughters; that she had made settlement of her entire property including the suit land in favour of all children of her five daughters after her death and till then she was to remain owner in possession of the same and that the said settlement was made by her in the presence of her relations and respondent-defendant was only deputed to arrange the formalities of the same and, however, respondent-defendant got the impugned decree passed in his favour, without explaining the same to the plaintiff, after misrepresenting that the land is being given after her death to all her grand children from all five daughters and, hence, she thumb marked the written statement and also thumb marked in the Court on the representation of respondent-defendant; and that she came to know about the alleged fraud when respondent-defendant tried to take illegal possession of the land in dispute.

(3.) The suit was contested by respondent-defendant by taking the plea that the decree was suffered by the appellant-plaintiff by her free will and she also got the mutation of the land in dispute sanctioned in favour of respondent-defendant by appearing before the Revenue Officer. Plea has also been taken that statement given by her in the Court was also read over to her and that the factum of adoption was also enquired into by the then Sub Judge, Kaithal, and after being satisfied, the decree was passed against her by the Court. Plea has also been taken that she herself brought the respondent-defendant in the Court and got filed a suit by him against her and that she appeared before the Court of her own will and hence, there was no need to issue any summons. He also stated that she engaged a counsel and filed admitted written statement, which was also read over to her and that the nature of the suit was also explained to her by the then Sub Judge, Kaithal, and that she thumb marked the statement after admitting the same to be correct. Factum of family settlement has been admitted. However, plea has been taken that in the said settlement the land in dispute was given by her to the respondent-defendant.