CHHIDA Vs. JAGDISH

JUDGEMENT

(1.) The present appeal is directed against the concurrent finding of fact whereby suit of the appellant-plaintiff for declaration and injunction and in the alternative for joint possession by laying challenge to the judgment and decree dtd. 3/11/1982 passed in Civil Suit No.286/9/8/82 titled as "Jagdish Vs. Fatte" in respect of the suit land has been dismissed and affirmed in appeal.

(2.) It was alleged that his uncle Fatte was owner in possession of land measuring 76 kanals 12 marlas being half share of land measuring 153 kanals 4 marlas. The disputed land aforementioned in the hands of Fatte was ancestral. He died unmarried and issueless on 5/5/1983. In such circumstances, plaintiff and the defendant being brothers and legal heirs/successors-in- interest claimed interest to the extent of half share i.e. 38 kanals 6 marlas each. However, the defendant played fraud upon the plaintiff and obtained a collusive, fraudulent and illegal decree vide judgment and decree dtd. 3/11/1982 against Fatte in respect of half share, 1 of 10 which was not sustainable as it required registration. Fatte did not surrender or relinquish his ownership as he had executed a registered Will dtd. 1/10/1980 in favour of plaintiff and defendant nor he appeared before the trial Court and therefore, fraud and misrepresentation was played upon him.

(3.) Defendant opposed the suit, raised the objection of provisions of Order 2 Rule 2 CPC and defended the decree to have been obtained in lawful manner without any element of collusiveness, fraud or misrepresentation. Fatte himself had engaged counsel and the decree was result of family settlement. Plaintiff had earlier filed suit bearing No.208 of 1983 and 325 of 1983 for declaration that they were owners in possession in equal shares of the suit land. Defendant disclosed the factum of the decree but the suit continued and ultimately was withdrawn on 26/7/1985 when reached at the stage of final arguments, thus, prayed for dismissal of the suit.