SHEO RAM Vs. HEM RAJ AND OTHERS

JUDGEMENT

(1.) The defendant in suit is the appellant before this Court. The minor sons and daughter of the person by name Parsandi had filed a suit for declaration that the decree obtained by the defendant against the plaintiff was illegal, void and inoperative and could not take away the rights that they were still the owners of their share in the properties. The suit had been dismissed. The appeal filed by the plaintiffs had been allowed and the plaintiffs' suit challenging the decree obtained in C.S. No.343 of 1978 had been found to be not binding on the plaintiffs. The defendant has appealed against the said judgment before this Court.

(2.) The suit in the appeal arises out of the following facts. An extent of property measuring 145 kanals 19 marlas of land described in the plaint was owned and possessed by one Hukam Singh. He died on 28.07.1974 leaving behind two sons Ram Chander and Sheo Ram (1st defendant), Parsandi the daughter and his widow Parbho. Mutation had been sanctioned assigning to each one 1/4th share. The daughter Parsandi had also died subsequently and as regards the 1/4th share, the mutations stood sanctioned in the name of Hem Raj, Mahinder and Rajinder being the sons, Smt. Dhano, Smt. Mahendri and Billi being the daughters. Mahinder, Mahendri and Billi are not parties. Only three of the heirs of the six heirs have filed the suit. It appears that Parbho, widow of Hukam Singh also died leaving behind the two sons Ram Chander and Sheo Ram and the children of the pre-deceased daughter Parsandi. The plaintiffs along with their other brothers and sisters would claim 1/3rd share in whole of the estate. It appears that the defendant Sheo Ram being one of the sons claimed that he had obtained a decree against the plaintiffs and others in Civil Suit No.343 of 1978. In the previous suit instituted in C.S. No.343 of 1978, it appears to have been claimed that there had been an oral settlement in the family with all the properties stood divided only between two sons and the plaintiffs forsook their claims in the property and in consideration of the fact that the cash had been given to their mother for her share. The earlier suit had been filed on the ground that the family settlement had been only oral and since both the ladies namely Parbho and Parsandi had died, it could not be put into writing. The suit had been filed on 10.08.1978 and it was claimed by the present defendant, who was the plaintiff in that suit, that a written statement had been filed on 14.08.1978 and they had conceded to the plaintiff's claim and allowed for a decree to be passed in terms of such consent and on the basis of such alleged admission, the earlier suit had been decreed. It is this decree, which was challenged by the plaintiffs contending that they were living in District Bullandshahr, U.P. and they were not at all residing in village Sehjawas, District Gurgaon as alleged in the earlier plaint. The plaintiffs contended that false address was given to keep them in dark and preventing them from coming to Court.

(3.) The defendant contended that the plaintiffs had actually appeared before Court and had given the statement and the plea of impersonation as made in the plaint was not true. The defendant claimed that all the plaintiffs herein were represented by counsel and the written statement had been filed on due verification of the correctness of the suit and affixing the thumb impression and signatures respectively by the parties. Although the trial Court had found that the plaintiffs' contention had not been established, the Appellate Court had held that in the earlier written statement, there was found a signature of the 1st plaintiff Hem Raj and there were also thumb impressions, which were claimed to be the thumb impressions of Rajinder and Dhanno namely the plaintiffs No.2 and 3. The lower Court found on examination of the witnesses that the so-called statement alleged to have been given by the 1st defendant Hem Raj in the previous proceeding had not been established at all. The Court even found that there was a very serious doubt about the identity of the person, who appeared in Court and admitted to the plaintiffs' claim in the previous suit. The Court found that none of the plaintiffs had appeared in Court and the decree itself had been obtained by impersonation. The Appellate Court found fault with the approach of the trial Court in discarding the opinion of the Finger Print Expert, which the Appellate Court found as a perfect science and if he had given a statement on the basis of his report that the thumb impression found in the written statement filed in the previous suit was not that of any of the plaintiffs, then the same ought to have been accepted by the Court and therefore, reversed the finding of the trial Court and held that the plaintiffs established that decree was not binding.