SATYAWAN Vs. RAGHBIR

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree dated 16-4-1999 of the Additional District Judge, Panipat affirming that of the Civil Judge (Junior Division) Panipat dated 17-9-1997, whereby she (Civil Judge, Junior Division) had dismissed the plaintiffs' (appellants' herein) suit for declaration.

(2.) Facts:- Plaintiffs Satyawan, Mohinder Singh and Ishwar Singh sons of Bir Singh filed suit for declaration against Raghbir Singh son of Desa son of Chandu to the effect that they are owners of land measuring 44 kanals 11 marlas detailed in para A of the head-note of the plaint, situated in the area of village Kurana, Tehsil Israna, District Panipat, shown in the Jamabandi for the year 1987-88 and mutation Nos. 5040, 5142 and defendant Raghbir Singh is the owner of land as detailed in para 8 of the head-note of the plaint, situated in the area of village Kurana, District Panipat shown in the jamabandi for the year 1987-88 and mutation No. 5247 and the judgment and decree dated 20-10-1992 passed in Civil Suit No. 959 of 1992 by Shri S. S. Lamba, Senior Sub-Judge, Panipat is illegal, null and void and was not binding on the plaintiffs and the same was based on fraud and misrepresentation and was liable to be set aside, with consequential relief of permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiffs over the land detailed in para B of the head-note of the plaint and from alienating the land in suit detailed in the head-note of the plaint by way of sale, mortgage, gift and also for possession of the land detailed in para A of the head-note of the plaint. It was alleged in the plaint that plaintiffs were owners in possession of the land detailed in para A of the head-note of the plaint and the defendant was owner in possession of the land detailed in para B of the head-note of the plaint. Defendant approached the plaintiffs and requested them to exchange their land with his land detailed in the head-note of the plaint in para B representing that it was free from all encumbrances. Plaintiffs are simpletion and they accepted the request of the defendant. Defendant filed Civil Suit No. 959 of 1992 against them on 20-10-1992. Defendant brought Satyawan and Ishwar Singh plaintiffs and kept them seated in a corner of the Court-room by giving them some liquor. After some time, the defendant produced Satyawan and Ishwar Singh in the Court of Shri S. S. Lamba, Senior Sub-Judge, Panipat and the defendant had directed them (Satyawan and Ishwar Singh) to say "yes" before the Court. Satyawan and Ishwar Singh did as they had been directed by Raghbir Singh defendant to do. Contents of the plaint were not read over to Satyawan and Ishwar Singh. Things fizzled out when the plaintiffs (Satyawan, Mohinder Singh and Ishwar Singh) contacted Patwari Halqa to get the mutation recorded in their names in respect of the land detailed in para B of the head-note of the plaint situated within the area of village Kurana and the Patwari Halqa told them that the situation of the land detailed in para B of the head-note of the plaint was shown to be of village Israna, District Panipat, whereas it should have been shown to be of village Kurana. The Patwari Halqa also told them that there was also loan outstanding against the land shown in para B of the head-note of the plaint due to the Oriental Bank of Commerce Branch Hat, and the land was mortgaged with the said bank. After the plaintiffs came to know of this fact they approached the defendant and requested him to get the decree amended and also to get the land detailed in para B of the head-note of the plaint redeemed by making the repayment of the loan amount but the defendant refused to do so. Defendant further threatened that he had played fraud upon them knowingly and he had the right to alienate the entire land detailed in the head-note of the plaint and would also dispossess them from the land detailed in para B of the head-note of the plaint. The judgment and decree dated 20-10-1992 passed in Civil Suit No. 959 of 1992 was, thus, illegal, void and not binding upon them and was the result of fraud and misrepresentation and was liable to be set aside, on the grounds that the land detailed in para B of the head-note of the plaint is far away from the village and is of inferior quality them the land detailed in Item A of the head-note of the plaint and the value of the land as detailed in para A of the plaint was higher and the value of the land detailed in para B of the plaint was very low. Defendant also pleaded that before exchange, his land was free from all encumbrances whereas the same was found mortgaged with Oriental Bank of Commerce, Hat. The contents of the plaint of suit No. 959 of 1992 were not read over to them. Fraud played by the defendant was clear inasmuch as Mohinder Singh (plaintiff No. 2) was neither summoned nor did he appear and no written statement was filed by him, nor any counsel was engaged. Defendant Raghbir Singh produced some other person vice the plaintiffs in the Court of Shri S. S. Lamba, Senior Sub-Judge, Panipat. Criminal complaint was also filed in this regard under Sections 468, 467, 419, 420 etc. of the Indian Penal Code in the Court of Chief Judicial Magistrate, Panipat. Decree was passed against the provisions of law and the provisions of the Indian Registration Act. There was no pre-existing right in favour of Raghbir Singh defendant and, as such, decree was null and void in itself. Raghbir Singh knowingly and intentionally showed the land detailed in para B of the head-note of the plaint to be situated in village Israna instead of village Kurana, Tehsil Israna with an intention to cause harm to the plaintiffs Satyawan, Mohinder Singh and Ishwar Singh.

(3.) Defendant Raghbir Singh contested the suit of the plaintiffs urging that it was rather Satyawan etc. plaintiffs who had approached him for exchange of their land with his land. It was denied that he had pleaded that his land was free from all encumbrances. In fact, there was a loan of Rs. 1,10,000.00 on the land which was given to them in the said exchange and an entry in this regard was also available in the jamabandi which was obtained by the parties at the relevant time. Nothing was concealed. It was denied that the plaintiffs are simpleton, rather the defendant is illiterate and simpleton. Plaintiffs are educated persons. In fact, the oral exchange between the parties to the suit took place somewhere in June, 1992. On the contrary when the plaintiffs, tried to resile from that exchange and filed suit for declaration and when the plaintiffs were convinced that in the said suit filed by the defendant they (plaintiffs) have no legs to stand upon, they of their own accord came to Court, engaged a counsel and filed the written statement admitting the claim of the defendant and suffered a decree by also making a statement in the Court. It was denied that the plaintiffs Satyawan and Ishwar Singh were seated in one corner of the Court by giving them some liquor. It was also denied that after some time, the defendant produced Satyawan and Ishwar Singh before Shri S. S. Lamba, Senior Sub-Judge, Panipat. It was also denied that the defendant directed Satyawan and Ishwar Singh to say "yes" before the Court. Satyawan, Mohinder Singh and Ishwar Singh made statement of their own accord in that suit alongwith their counsel. It was denied that they did so as they had been directed to do so by the defendant. It was denied that defendant is the owner of land detailed in para B of the head-note of the plaint. It was denied that the plaintiffs are owners of the land detailed in para A of the head-note of the plaint. In fact, defendant is the owner of the land detailed in para A of the plaint and he had spent huge amount on installing tube-well in the said land and had made other improvements. He has already paid the entire loan amount of the bank in respect of the land B which was given by him to the plaintiffs and a clearance certificate had already been issued by the Bank. Decree dated 20-10-1992 passed in Civil Suit No. 959 of 1992, was neither illegal nor void. The said decree is binding on all concerned. It was denied that the said decree was the result of fraud and misrepresentation. It was denied that the land detailed in para B of the head-note of the plaint is far away from the village and is of inferior quality. In fact, the land given by the defendant to them was of much better quality being irrigated by canal. On the contrary, the land given to the defendant by the plaintiffs was of inferior quality. Defendant agreed to the exchange on account of the fact that along the land which was given to him to exchange, there was some other land in possession of the defendant which though was recorded as owned by the Gram Panchayat but, in fact, the defendant was owner thereof. Another consideration for the defendant for taking inferior quality land of the plaintiffs was that the land of his brotherhood was all around the said land and the defendant wanted to come near to his brotherhood. After improvements, the plaintiffs have become dishonest and they are trying to get back the land.