PRABHU LAL Vs. LAXMI

JUDGEMENT

(1.) The challenge in the present second appeal is to the judgment and decree by the Courts below, whereby the suit for declaration filed by the plaintiff- respondents No. 1 to 10 challenging consent decree dated 15.12.1981, was decreed.

(2.) One Nirmal Dass was the owner of the suit property comprising of agricultural land and the house etc. After his death, his estate was inherited by his wife Bharwan Bai (widow), Ram Krishan, Radha Krishan, Hari Narain, Sita Ram, Prabhu Lal sons, Smt. Jamuna Devi and Radha Rani daughters. As per the defendant-appellant, the parties had entered into a family family settlement a year prior to sufferance of a consent decree on 15.12.1981 and, therefore, by virtue of family settlement recognised by consent decree, he is owner and in possession of the suit land. It is also the case of the appellant that sometime in the year 1972, a loan was taken for purchase of tractor in the name of Sita Ram for the family on 20.7.1972, but the same could not be repaid. The liability to pay such loan was taken over by the appellant. The parties entered into a family settlement according to which the liability to settle the account of the Bank was of the appellant as the other co-sharers agreed to transfer their share in the land to the appellant and in respect of which, decree was passed on 15.12.1981. In the said suit, admission written statement dated 12.12.1981 was filed after the same was signed/thumb marked by Smt. Bharwan, Jamuna Devi, Radha Devi, Ram Kishan, Hari Narain for himself and his brothers Radha Krishan and Sita Ram. On the same date, Bharwan, Ram Kishan, Hari Narain for himself and for his brothers, Radha Devi, Smt. Jamuna Devi and Radha Devi, suffered statement accepting the claim of the plaintiff along with their counsel Shri B.P. Yadav. On the basis of said statement, decree was passed on 15.12.1981.

(3.) Such decree was challenged in the suit for declaration filed on 21.12.1987 by Radhya Krishan, Sita Ram, Ram Kishan and Radha Rani on the ground that the plaintiffs have never signed or thumb marked any document admitting the claim of the appellant nor made any statement admitting the claim of the appellant. It was also pleaded that the plaintiffs have never engaged any counsel on their behalf and no notice was issued. Plaintiffs Sita Ram and Radha Krishan are alleged to have executed a Power of Attorney dated 7.12.1981 in favour of Hari Narain. The said Power of Attorney is illegal and void and the same was never read over and explained to the plaintiffs. The Power of Attorney is dated 7.12.1981, whereas the same was purported to be executed to defend the suit filed on 8.12.1981. The original plaint filed on 8.12.1981 was in respect of agricultural land but the same was amended on 9.12.1981 to include the house and the plot along with agricultural land. The decree was sought to be avoided on the ground that except Radha Krishan and Sita Ram, all other plaintiffs and their mother Bharwan are illiterate persons. It was admitted that the loan was taken from the Bank for the purchase of the tractor but the same could not have been paid back. It is pointed out that it was decided amongst the family members that defendant Nos. 1 Prabhu Lal, would pursue the said petition filed by the Bank for recovery.