RISALA AND ORS. Vs. RULDU AND ORS.

JUDGEMENT

(1.) DEFENDANT Nos. 1 and 2 before the lower Court has filed this regular second appeal challenging the judgment and decree dated 14.1.1985, passed by the learned Additional District Judge, Jind, vide which, the judgment and decree dated 16.1.1984, passed by the learned Sub Judge, IInd Class, Jind was set aside and the suit of the plaintiff was decreed for declaration to the effect that she is owner of 1/9th share in the total land measuring 347 kanals 11 marlas and that the judgment and decree dated 25.2.1981 passed by Senior Sub Judge, Jind in suit No. 120 of 24.2.1981 is null and void and based on fraud and not binding upon the rights of the plaintiff. A decree for possession was also passed in favour of the plaintiff and against the defendants.

(2.) FACTS of the case are that Sunehri plaintiff filed a suit for declaration to the effect that she is owner in possession of 1/9th share in the agricultural land measuring 347 kanals 11 marlas, fully detailed in the head note of the plaint, situated in village Jhanjh Kalan, Tehsil and District Jind and that the judgment and decree dated 25.2.1981, passed in Civil Suit No. 120 of 24.2.1981, passed by the Senior Sub Judge, Jind is null and void, based on the fraud and not binding upon the rights of the plaintiff. Permanent injunction was also sought for restraining the defendants from alienating the suit land in any manner. It was also prayed that if it is found that defendant set No. 1 is in unauthorized possession, then decree for possession may also be granted. Plaintiff claimed that she is owner in possession of 1/9th share in the suit property. Defendant Nos. 1 and 2, who are relative of the plaintiff being cousin, approached the plaintiff for giving share of the plaintiff on lease basis for two years. Plaintiff agreed to the same and came to Jind about one year back for execution of necessary documents. Defendant Nos. 1 and 2 got thumb impression of the plaintiff and defendant set No. II on two or three documents in the presence of Ch. Dhup Singh, Advocate Jind. Defendant set No. II also told that she has also come at Jind for leasing out the land of her share to defendant set No. II. Defendant set No. II also executed few documents in this connection. Then defendant set No. 1 took the plaintiff to the office stating that documents are to be got registered to avoid further complication and for that purpose plaintiff and defendant set No. II have to appear before the officer concerned. The thumb impression of plaintiff and defendant set No. II were also obtained on a paper in the alleged office of the Registrar. Regarding payment of lease money, defendant set No. 1 stated that they will pay the lease money after harvesting the crop. Lease amount was settled at Rs. 300/ - per killa per annum. About a month back, plaintiff came to the house of her mother and there she came to know that defendant set No. 1 has become owner of the suit land by way of collusive decree obtained through said fraud. Plaintiff never signed the written statement and power of attorney nor admitted the suit of the plaintiff to be correct in the said suit No. 120 of 24.2.1981. Decree was obtained by fraud and misrepresentation of facts.

(3.) DEFENDANT No. 2 appeared and in the written statement admitted that a family settlement was effected in which Rs. 50,000/ - were given in the shape of cash, jewellery and clothes to her and her sister Sunheri plaintiff and that as per the family settlement, she had made a statement before the Court. Defendant Nos. 1 and 2 in the joint written statement raised preliminary objection that a mutual family settlement was arranged between plaintiff and defendant set No. 1 and defendant set No. II by the efforts of the neighbourhood, relations and the Panchayat. According to that settlement, plaintiff and defendant set No. II were given clothes, ornaments, cash and other articles of about Rs. 50,000/ -. In the token of receipt of the said clothes, ornaments and cash etc. writing was also executed, which was thumb marked by the plaintiff and others. On merits, all the averments were denied stating that plaintiff had made the statement before the Court of Senior Sub Judge, Jind and decree was correctly passed. In replication, plaintiff denied the averments made in the written statement. Parties went on trial on the following issues: - -