MADAN LAL Vs. RAJESH KUMAR

JUDGEMENT

(1.) This is a defendants' appeal filed under Section 100 of the Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts holding that the judgment and decree dated 21.4.1988 passed in Civil Suit No. 1270 of 1987 was obtained by fraud and impersonation by the defendant-appellants and the same was never suffered by the plaintiff-respondent Chandrawati (now represented by her LRs.). It has further been held that the suit of the plaintiff-respondent was within the period of limitation and the defendant-appellants cannot claim continuation of their tenancy rights in the suit land. In order to maintain clarity, the parties to litigation are being referred to as per their original nomenclature in the suit by adding suffix of appellants and respondent, although plaintiff Chandrawati is represented by her legal representative.

(2.) Brief facts of the case are that one Chandrawati used to live with her husband at Village Tosham. She lost her husband Om Prakash at young age. Jagdish Chander defendant-appellant No.2 is the elder brother of her deceased husband. Defendant-appellant No. 1 Madan Lal is the son of aforementioned Jagdish Chander. Plaintiff-respondent Chandrawati was the owner of the suit land. After the death of her husband Om Parkash, she started living at Village Talwara which was her parents' place and would visit Tosham occasionally to collect the share of her profit from the land (batai). In her absence, defendant-appellant No. 2 alleged to have got himself incorporated as a tenant in the revenue record and he wanted to usurp her land. Defendant-appellant No. 2 used to pay her Rs. 5,000/- in lump sum as part of the profits. Before the filing of suit, he stopped making payment of Batai. In February, 1995 when she sent her brother's son Harish Chander to collect the Batai amount from defendant-appellant No. 2 for the first time, it was disclosed by defendant-appellant No. 2 that the plaintiff-respondent was no more owner. It was later found out that defendant-appellant No. 2 had obtained mutation No. 2662 dated 10.6.1986 sectioned in favour of his son defendant-appellant No. 1 on the basis of a civil Court decree dated 21.4.1988 passed in Civil Suit No. 1270 of 1987. The case of the plaintiff-respondent is that the aforementioned decree and subsequent mutation have been obtained by practising fraud on the plaintiff-respondent as well as on the Court because she had not filed any written statement in the suit by admitting the claim of defendant-appellant No. 1 nor she has engaged any counsel. The aforementioned judgment and decree and subsequent sanctioning of mutation were challenged on the ground of fraud and impersonation alleging that defendant-appellant No. 1 has illegally occupied the suit land in connivance with his father defendant-appellant No. 2. She claimed restoration of possession and a declaration that defendant-appellant No. 2 Jagdish Chander brother of her deceased husband has even lost the tenancy rights. The mortgage of the suit land by defendant-appellant No. 1 in favour of Oriental Bank of Commerce, Ellenabad to secure a loan of Rs. 99,000/- after the mutation is also alleged to be illegal.

(3.) The stand of the defendant-appellants in their joint written statement is that no fraud had played and that plaintiff-respondent Chandrawati has been residing with defendant-appellant No. 2 since 1950 and he used to help her. According to them a family settlement between the plaintiff-respondent and defendant-appellant No. 2 had taken place and in pursuance to that family settlement, the plaintiff-respondent suffered a judgment and decree dated 21.4.1988 in favour of defendant-appellant No. 1. It is alleged that prior to 1992-93, the plaintiff-respondent used to reside at Village Talwara and that the suit has been filed at the instance of Harish Chander her brother's son. She is alleged to have admitted the claim of defendant-appellant No. 1 in the Court and she herself had engaged a counsel to file written statement on her behalf. It is further claimed that even at the time of mutation proceedings, she had herself appeared by making admission that she had suffered the judgment and decree dated 21.4.1988. It was also claimed that suit was beyond the period of limitation as judgment and decree dated 21.4.1988 has been challenged on 24.3.1995. The Oriental Bank of Commerce has also filed its separate written statement by denying the averments made by the plaintiff-respondent for want of knowledge.