DHARAM SINGH Vs. GURDEV SINGH AND ORS.

JUDGEMENT

(1.) BEING unsuccessful in both the courts below, the plaintiff has filed the present regular second appeal in this Court challenging the judgment and decree dated 1.2.2007 passed by the first appellate court affirming that of the trial court dated 25.8.2005 whereby the suit of the plaintiff for declaration was dismissed.

(2.) ADUMBRATED the facts necessary for the disposal of this appeal are that the plaintiff filed a suit for declaration to the effect that the compromise dated 29.5.1995 as well as the judgment and decree dated 9.6.1995 passed in Civil Suit No. 545 of 9.12.1993 titled as Sukhminder Singh etc. v. Hukam Singh etc. on the basis of said compromise, being result of fraud played upon the plaintiff and defendants No. 10 and 11, were not binding upon them and as a consequential relief a decree for permanent injunction restraining defendants No. 1 and 2 from deriving any benefit out of the judgment and decree dated 9.6.1995; alienating any part of the landed property situated at village Kumbra, Taraf Kumra, Chilla and Jhumra etc. and from receiving any amount from the Land Acquisition Collector was. also sought. It was pleaded that the plaintiff along with others filed a suit against defendants No. 1 and 2 and others titled "Sukhwinder and Ors. v. Hukam Singh and Ors." and on the basis of a compromise dated 29.5.1995 arrived at between the parties therein, the judgment and decree dated 9.6.1995 came to be passed by the trial court. It was further pleaded that at that time Ishar Kaur widow of Nauhar Singh who was plaintiff No. 5 had died during the pendency of the said suit and she had executed a registered Will dated 4.9.1989 before her death but this fact could not be taken into consideration while recording the compromise. Therefore, the compromise was a result of fraud and as such the decree dated 9.6.1995 was liable to be set aside. The defendants being strong -headed persons wanted to alienate the suit property and that gave rise to the filing of the suit as mentioned above.

(3.) THE trial court on appreciation of the evidence led by the parties, dismissed the suit of the plaintiff vide judgment and decree dated 25.8.2005 holding that the plaintiff had failed to bring any evidence regarding fraud etc. and that a decree based on compromise cannot be challenged by filing a separate suit and as such, the suit of the plaintiff was held to be not maintainable. Against the dismissal of the suit, the plaintiff filed an appeal and the first appellate court vide judgment and decree dated 1.2.2007 affirmed the findings recorded by the trial court and dismissed the appeal. Being dissatisfied and undaunted, the plaintiff filed the present regular second appeal in this Court.