JAMMU RAM Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) This revision petition filed under Sec. 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges order dated 3.11.1999 passed by the Additional District Judge, Sirsa vide which the appeal filed by the plaintiff -respondent No. 1 challenging the order dated 5.10.1999 was accepted. In the appeal, order dated 5.10.1999 passed by the Civil Judge (Jr. Division), Sirsa was challenged by plaintiff -respondent No. 1 as her application under Order XXXIX Rules 1 and 2 of the Code seeking interim directions to the defendant -petitioner was dismissed. The Additional District Judge in the impugned order dated 3.11.1999 has directed the parties to maintain status quo regarding possession of the suit land in respect of the share belonging to plaintiff -respondent No. 1.

(2.) Brief facts of the case which led to the filing of the present revision petition and necessary to decide the controversy are that plaintiff -respondent No. 1 filed a suit for declaration to the effect that she alongwith defendant -respondents No.6 to 8 are owners in possession of the suit land and have sought annulment of revenue entries for the period after Kharif 1992 which shows the joint possession of defendant -respondent No.2 and defendant -respondents No.6 to 8. A further prayer for declaration has been made that the judgment and decree dated 29.1.1998 passed in Civil Suit No.41 -C of 1993, titled Jammu Ram v/s. Arjan Dev and Ors.' and appellate judgment and decree dated 10.12.1998 in Civil Appeal No.41 of 1998 and the judgment and decree dated 10.8.1999 passed in R.S.A. No.3927 of 1998 by this Court are null, void and against the principles of natural justice as those judgments have been passed without making the plaintiff -respondent No. 1 and other owners of the land as party which are alleged to be the result of collusion and fraud played on plaintiff -respondent No. 1 and defendant -respondents No. 6 to 8. Consequently, relief of permanent injunction restraining the defendant -petitioner and defendant -respondent No. 2 from interfering with the joint possession of plaintiff -respondent I and defendant -respondents No.6 to 8 as owners of the suit land or dispossessing them forcibly and illegally was also sought. Alongwith the suit, an application under Order XXXIX Rules 1 and 2 of the Code was filed and another application under Order XIV Rule 5 of the Code was also preferred. However, in the present revision petition, the challenge is only to the application filed under Order XXXIX Rules 1 and 2 of the Code. The Civil Judge dismissed the application on 5.10.1999 as he felt bound by the judgment and decree dated 29.1.1998 which was affirmed by the Additional District Judge vide his judgment and decree dated 10.12.1998 passed by this Court in R.S.A. No.3927 of 1998. He also concluded that the question of collusion and fraud raised by the plaintiff -respondent No. 1 is a matter of evidence and shall accordingly be decided. On that premise, the Civil Judge dismissed the application. However, the Additional District Judge reversed the order dated 5.10.1999 passed by the Civil Judge on the principal ground that the judgment and decree dated 29.1.1998 passed in Civil Suit No.41 -C of 1993 and its subsequent reversal by the Additional District Judge vide order dated 10.12.1998 and the order of this Court dated 10.8.1999 in R.S.A. No.3927 of 1998 upholding the judgment and decree dated 10.12.1998 passed by the Additional District Judge is based on the ground that there was no sufficient evidence to prove the basic document i.e. relinquishment deed. The relinquishment deed dated 16.12.1992 is a registered document. It has further been recorded by the Additional District Judge that defendant -petitioner has not specifically denied his thumb impression over the registered relinquishment deed and there is a compromise dated 14.4.1993 between the defendant -petitioner and defendant -respondents No.6 to 8 wherein a payment of Rs. 3,54,000/ - as consideration of relinquishment of possession by the defendant -petitioner was admitted. According to the terms of compromise, defendant -petitioner under -takes to return a sum of Rs. 3,54,000/ - to defendant -respondent No. 6 Arjan Dev and Ors. and to get back the possession of land which he had surrendered by executing the relinquishment deed in favour of plaintiff -respondent No. 1. Defendant -petitioner did not make the payment as per terms and this document/compromise dated 14.4.1993 was never produced before the Courts in earlier litigation. Another reason which prevailed on the Appellate Court was that a judgment and decree obtained by playing fraud is nullity and non est. Moreover, the plaintiff -respondent No. 1 was not a party to the earlier litigation and hence, she was not bound by the result of the same. On the basis of aforementioned reasons, the Additional District Judge directed the parties to maintain status quo regarding possession of the suit land in respect of the share of plaintiff -respondent No. 1 till the decision of the case on merits.

(3.) 1 have heard Mr. J.S, Thind, learned counsel for defendant -petitioner and Mr. L.N. Verma, learned counsel for plaintiff -respondent No. 1 and with their assistance have perused the record.