RAMBIR Vs. LEKHA

JUDGEMENT

(1.) The defendant-appellant is in the regular second appeal against the judgment passed by the learned first appellate court reversing the judgment of the learned trial court resulting in decreeing the suit filed by the plaintiff-respondent.

(2.) The questions which require consideration are as under:-

(3.) Some facts are required to be noticed. Paras Ram, a common ancestor of the parties, was having five sons namely Lekha, Har Narain, Nand Ram, Jal Singh and Bohri Lal. Lekha was a childless bachelor. Jal Singh has a son namely Rambir. Rambir initially filed a Civil Suit No.701 of 1998 on 9/11/1998, pleading that in a family settlement which took place one year back, Lekha had admitted claim of Rambir in the suit resulting in declaration that he is owner in possession. Now this fact is being disputed. During the pendency of the aforesaid suit, Rambir filed another suit on 13/5/1999 bearing Civil Suit No.220 of 13/5/1999 pleading that in a family settlement which took place on 1/1/1999, Lekha- defendant/appellant had admitted that Rambir-plaintiff to be owner in possession. In the aforesaid second suit i.e. Civil Suit No.220 of 13/5/1999, Lekha appeared through counsel on 21/5/1999 and filed a written statement through counsel admitting the assertion made in the plaint. Shri Lekha appeared before the court and suffered a statement admitting the contents of the plaint. Rambir also suffered a statement on the same day and the court passed a judgment and decree under Order 12 Rule 6 CPC. The decree, which has been passed, was first challenged by brother of Lekha, Har Narain and the aforesaid suit as per the pleadings is pending. Lekha also filed a suit on 19/7/1999, challenging judgment and decree dtd. 25/5/1999 on the ground that the aforesaid judgment and decree is result of fraud. At this stage, it may be noticed that Lekha in his plaint stated that Rambir had brought to the civil court at Palwal and got his signatures on some papers on the excuse that the plaintiff had to defend a suit filed against him by his other nephews. Lekha also stated in the plaint that he appeared before the court but the Presiding Judge did not ask him as to how and for what purpose the plaintiff has come to the court. With these assertions, the suit was filed which was contested by Rambir-appellant herein. Assertions with regard to fraud were disputed and it was reiterated that this suit has been filed by the plaintiff in collusion with Har Narain, his brother, who has also filed a similar suit which is pending.