“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1881 OF 2008

Santosh …. Appellant

Versus

Jagat Ram & Anr. …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

This is an appeal by a helpless widow, who has become a prey of  

the greed of her own elder brother in law and is deprived of her properties  

in a fraudulent manner.  As per the pleadings, Smt. Santosh (appellant  

herein),  the original  plaintiff,  lost  her  husband Chander  Pal  in  the  year  

1985.  She is issueless.  Chander Pal, at the time of his death, owned a  

land to the extent of 36 kanals 7 marlas out of the total land measuring 80  

kanals 1 marla comprised in khewat No. 64 khatoni No. 96 and 97 as per  

Jamabandi  for  the  year  1975-76  situated  at  Village  Kotia,  Tehsil  and  

District Mahendragarh.  After losing her husband in the prime of youth, she  

had nobody to look forward to.  Respondents are the sons of one Daya  

Ram, who was the real brother of Chander Pal.  Appellant was approached  

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by Daya Ram (DW-4), who convinced her to accompany him to Courts of  

Mahendragarh, so that the mutation of the properties inherited by her from  

her husband could be made and the properties could be recorded in her  

name.  Believing him, she accompanied him to Mahendragarh, where her  

thumb impressions were obtained on 3-4 papers.  She was also asked to  

say ‘yes’ if she was asked any question by the authorities.  She believed in  

good faith  that  the  mutation  will  be  done and the  properties  would  be  

recorded in her name.  All this happened on 26.3.1985.  About two and  

half  months,  before  filing  of  second  suit  the  respondents  (original  

defendants) and her brother in law Daya Ram (DW-4) started interfering  

with her possession and insisted that there was a decree passed in their  

favour in respect of her lands.  She, therefore, filed the present suit  for  

declaration to the effect that she was owner in possession of the land in  

respect of the properties mentioned above and the so-called decree dated  

26.3.1985  shown  to  have  been  suffered  by  her  in  favour  of  the  

respondents-defendants  is  illegal,  bad  and  was  a  result  of  fraud  and,  

therefore, not binding upon her at all.

2. The  suit  was  contested  by  the  respondents-defendants.   They  

claimed that the decree in question was legal and there was no question of  

fraud and that in fact, the said decree was as per the family settlement.  

They also pleaded that the suit was barred by limitation and as such, the  

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suit was liable to be dismissed.  The evidence was led on behalf of the  

appellant-plaintiff  in support  of  her  plea,  wherein  she examined herself,  

while  on  behalf  of  the  respondents-defendants,  four  witnesses  were  

examined including one Dharam Singh (DW-1), Record Keeper, one Ram  

Singh (DW-2),  Bailiff,  one S.K.  Joshi (DW-3),  Advocate and Daya Ram  

(DW-4) himself.  The Trial Court accepted the evidence of the appellant-

plaintiff  and  disbelieved  the  witnesses  examined  on  behalf  of  the  

respondents-defendants and while decreeing the suit,  returned a finding  

that the decree dated 26.3.1985 was a result of a fraud.

3. An appeal came to be filed by the respondents-defendants against  

the above order, which was allowed.   The Appellate Court came to the  

conclusion that there was no fraud played and the consent decree dated  

26.3.1985 was a good and a valid decree.  The Appellate Court also held  

that the suit filed by the appellant-plaintiff was barred by time.

4. The appellant-plaintiff field a Second Appeal before the High Court,  

which was dismissed in limine.   This is how the appeal has come before  

us.

5. Shri V.C. Mahajan, Learned Senior Counsel appearing on behalf of  

the appellant, firstly pointed out that the judgment by the High Court in the  

Second Appeal  was  a classic  example of  non-application of  mind.   He  

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pointed  out  that  the  consent  decree  dated  26.3.1985  was  a  classic  

example of fraud.  The Learned Senior Counsel, in support of his plea,  

pointed out that the plaint is dated 26.3.1985; It is filed on 26.3.1985; The  

Written  Statement  filed  by  the  appellant  is  also  dated  26.3.1985;  The  

appellant was examined on 26.3.1985 and the decree was also passed on  

26.3.1985.  The Learned Senior Counsel wondered as to how all this could  

have happened on one and the same day.  He pointed out that there was  

no  question  of  the  appellant  being  summoned  by  the  Court  or  she  

remaining present in pursuance of those summons.  The Learned Senior  

Counsel took us through the plaint in that suit, which was registered as  

Civil Suit No. 253 of 1985.  According to the Learned Senior Counsel, as if  

all this was not sufficient, later on, an application was filed, purporting to be  

an application under Section 148-A of the Code of Civil Procedure (CPC)  

on 30.9.1985.  This application was filed with the signatures of the same  

Advocate S.K. Joshi, who had appeared on behalf of the appellant in the  

earlier proceedings and had filed a Written Statement of consent.  It is then  

pointed out by the Learned Senior Counsel that a notice was issued by the  

Court of Sub-Judge, First Class to the appellant and was served through a  

bailiff  and in pursuance of that notice, she came and gave a statement  

before  the  Court  on  23.11.1985  that  she  did  not  intend  to  file  a  suit,  

challenging  the  consent  decree.   The  Learned  Senior  Counsel  then  

pointed out that there was no question of any proceedings being instituted  

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on the basis of a so-called caveat under Section 148-A of the CPC nor was  

there any question of the Court issuing any notice on the basis of a caveat.  

He also pointed out further that all this was nothing but a towering fraud  

played upon the appellant.  He pointed out that it is throughout the case of  

the  appellant  that  she  never  appeared  before  any  Court  nor  did  she  

depose before the Court and that she is an illiterate lady knowing nothing  

about the intricacies of law and the procedures of the Court.  The Learned  

Senior Counsel further argued that though the suit was rightly decreed by  

the Trial Court holding that the earlier decree obtained in the year 1985  

was a fraud upon the appellant, the Appellate Court has, in a most casual  

manner,  allowed  the  appeal  filed  by  the  respondents-defendants  and  

chose to  believe the evidence of  the lawyer,  which  also  was  a classic  

example of  non-application of  mind on the part  of  the Appellate  Court.  

Learned Senior Counsel further argued that as if all this was not sufficient,  

the High Court,  in  a most  casual  manner,  has chosen to dismiss such  

Second Appeal, involving the substantial questions of law, in limine without  

even  considering  the  same.   From  this,  the  Learned  Senior  Counsel  

argued that the respondents herein have succeeded in perpetrating their  

fraud against the appellant.

6. The argument was opposed by Shri T.S. Ahuja, Learned Counsel,  

appearing on behalf of the respondents on the ground that the case of the  

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respondents was well supported by the fact that the lawyer Shri S.K. Joshi  

had stepped into the witness box in the subsequent suit and had reiterated  

that the appellant had consented and instructed him and it was only as per  

the  instructions  of  the  appellant  that  he  had  prepared  her  Written  

Statement in the first suit.  The Learned Counsel also pointed out that Shri  

Joshi (DW-3) also reiterated about the appellant’s statement made in the  

caveat proceedings.  The Learned Counsel further argued that even Shri  

R.S. Yadav, Advocate, who appeared in the Trial Court for the appellant  

herein, offered himself as a witness by way of additional evidence and he  

had  stated  that  the  Criminal  Petition  No.  7-4  dated  28.9.1994  under  

Section 125 of the Criminal Procedure Code (Cr.P.C.), which was decided  

on 12.8.2000 was drafted as per the instructions given by the appellant  

Santosh  and  that  the  appellant  had  put  her  thumb  impression  on  this  

petition which was  Exhibit  AX.   From this,  the Learned Senior  Counsel  

claimed that  even on 28.9.1994, the land was not in possession of the  

appellant Santosh and, therefore, the story of the appellant that she came  

to the Court when her possession was being disturbed, is a myth and as  

such, the second suit was obviously barred by time.  The Learned Counsel  

further reiterated that this was correctly appreciated by the Appellate Court  

and the High Court and they were correct in dismissing the suit as barred  

by time.  He also pointed out that during the pendency of the appeal before  

the Appellate Court, the respondent No. 1 had filed an application under  

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Order  6  Rule  17  CPC for  amendment,  pointing  out  that  after  the  first  

decree  in  Civil  Suit  No.  253  of  1985,  the  respondents-defendants  had  

constructed a pucca well and also installed a pumping set and obtained  

electric connection from the Electricity Board and the appellant Santosh  

did not object to the same.  The Learned Counsel fairly admitted that this  

application was, however, dismissed by the Additional District Judge.

7. The basic questions in this appeal would be as follows:-

(i) Whether  a  fraud  was  played  against  the  appellant  

herein for obtaining the decree in Civil Suit No. 253 of  

1985?  

(ii) Whether  the  second  suit  filed  by  the  appellant  was  

within limitation?

8. We have very  carefully  perused the records of  the  Courts  below  

since the judgment of the High Court is laconic. Beyond mentioning the  

facts on the basis of the pleadings, there is nothing in the judgment.  It  

seems to  have  been passed  on the  incorrect  basis  of  the  absence  of  

substantial  question of law.  Again the High Court has given a one-line  

finding  that  the  suit  filed  by  the  appellant  was  beyond  the  period  of  

limitation,  since  it  was  filed in  the year  1990,  seeking to  set  aside  the  

decree passed in the year 1985.  Ordinarily, we would have remanded this  

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matter back to the High Court.  However, considering the time taken so far  

in finalizing the rights of the parties, we proceed to decide this appeal on  

merits.

9. The Trial Court, after correctly framing the issues, took the stock of  

all  the four  witnesses,  namely,  Dharam Singh (DW-1),  Record Keeper,  

Ram Singh (DW-2), Bailiff, S.K. Joshi (DW-3), Advocate and Daya Ram,  

the father of the respondents-defendants.  The Court answered the first  

three issues in favour of the present appellant.  Those issues pertain to:-

(i) Ownership and joint possession of the suit land of the plaintiff?

(ii) The decree passed on 26.3.1985 in Civil Suit No. 253 of 1985  

being nullity.

(iii) Recording  the  mutation  No.  1093  dated  6.11.1985  being  

illegal and not binding on the rights of the plaintiff?

Taking  stock  of  the  evidence,  the  Trial  Court  took  note  of  the  

improved version on the part of Daya Ram (DW-4) that the father of the  

appellant had demanded Rs.20,000/- and had then agreed to give share of  

Chander Pal to the respondents-defendants and that the said amount was  

paid through one Mam Chand, cousin brother of Daya Ram (DW-4).  The  

Trial Court rightly noted that this was not only an improvement, but said  

Mam Chand, through whom the amount was given, was never examined.  

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The Trial Court also referred to the admission by Daya Ram (DW-4) that  

no money was ever given to the appellant for household expenses and  

that  she had no source to maintain herself.   From this,  the Trial  Court  

correctly deduced that the person who is not having any source to maintain  

himself/herself, could not part with his/her landed property as well in the  

manner  that  the  appellant  did.   The admissions by  S.K.  Joshi  (DW-3),  

Advocate  to  the  effect  that  he  and  Shri  K.L.  Yadav,  Advocate,  who  

appeared  for  the  appellant  in  the  earlier  suit  and  for  the  respondents-

defendants in the present suit before the Trial Court, used to sit on the  

same seat and were the partners in the same profession having a common  

Clerk.   The  Trial  Court  also  noted  the  arguments  on  the  side  of  the  

respondents to the effect  that  Daya Ram (DW-4) was  looking after  the  

appellant and that the appellant had filed a Written Statement in the first  

case, the contents of which were well known to her and that she admitted  

the same as correct, as asserted by S.K. Joshi (DW-3), Advocate, in his  

evidence.   Furthermore,  the  Trial  Court  also  noted  the  facts  about  the  

Caveat having been filed by the respondents herein, the reply to which  

was filed by the appellant-plaintiff  vide Exhibit  DW3/D, wherein she had  

averred  that  she  had  voluntarily  suffered  the  impugned  judgment  and  

decree and that she did not challenge the same.  The Trial Court rightly  

found  the  story  of  payment  of  Rs.20,000/-  to  be  a  myth,  since  it  was  

nowhere stated in the pleadings also.  Further, the Trial Court also noted  

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that the appellant, who was an issueless widow and an illiterate lady, was  

not at all being supported by Daya Ram and Daya Ram being her elder  

brother in law, was in a position to dominate and take advantage of her  

ignorance and illiteracy.  The Trial Court also inferred correctly from the  

fact that a Caveat was filed in the year 1985 itself and the appellant was  

again paraded to make a statement that she did not intend to challenge the  

decree.  As regards the question of limitation, the Trial Court noted that the  

cause of action arose when respondents started interfering with ownership  

and possession of the appellant-plaintiff over the suit land about two and  

half  months before filing of the second suit  and started asserting about  

there having a decree in their favour in respect of the suit land.

10. As against this, when we see the judgment of the Appellate Court,  

there  are  number  of  material  facts  in  the  evidence,  which  have  been  

ignored by the Appellate Court.  The basic fact which has been ignored by  

the Appellate Court is that in the earlier Civil  Suit No. 253 of 1985, the  

plaint was filed on that day, Written Statement was also filed on the same  

day, the evidence of the plaintiffs and the defendant (appellant herein) was  

also recorded on the same day and the judgment was also made ready  

alongwith a decree on the same day.  This, by itself, was sufficient to raise  

serious doubts in the mind of the Courts.   Instead, the Appellate Court  

went on to believe the evidence of Dharam Singh (DW-1), Record Keeper,  

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who produced the files of the summons.  One wonders as to when was the  

suit filed and when did the Court issue a summons and how is it that on the  

same day, the Written Statement was also ready, duly drafted by the other  

side lawyer S.K. Joshi (DW-3).  Significantly enough, the Appellate Court  

has also relied on the evidence of S.K. Joshi (DW-3), who deposed about  

the appellant having come to him and instructed him to prepare the Written  

Statement  (Exhibit  DW3/A).   In  his  evidence,  S.K.  Joshi  (DW-3)  has  

admitted specifically that there was a common clerk between him and the  

counsel for the plaintiff in the earlier suit and they used to sit on the same  

Takhat (seat).  An impossible inference was drawn by the Appellate Court  

that the appellant was telling a blatant lie when she asserted that she did  

not voluntarily suffer a decree.  The Appellate Court has also mentioned  

about the File No. 5 dated 30.9.1985,  which would be hardly about six  

months after the said decree passed on 26.3.1985, which pertain to the  

Caveat field under Section 148-A of the CPC.  We put a specific question  

Shri Ahuja, Learned Counsel, appearing on behalf of the respondents, as  

to whether in Haryana, on the basis of Caveats, could summons be issued  

by the Civil Courts, so as to be served on the other side through a Bailiff of  

the  Court.   The  Learned  Counsel  was  unable  to  support  any  such  

proceeding.  As if all that was not sufficient, appellant was again brought to  

the Court in pursuance of the so-called summons served on her through  

Bailiff  in  the  proceedings  under  Section  148-A  of  the  CPC  and  her  

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statement was also got recorded.   It  is not known as to how a Caveat  

application was got registered and a summons was sent on the basis of a  

Caveat application, treating it to be an independent proceedings.  Such is  

not the scope of a Caveat under Section 148-A of the CPC.  At least Shri  

Ahuja, Learned Counsel, appearing on behalf of the respondents could not  

support such a finding and he fairly stated that he was unaware of any  

such procedure.  Nothing has been shown to us in the nature of an order  

passed  by  the  Court  on  the  basis  of  the  so-called  Caveat.   We  are  

convinced that this was nothing, but a very poor attempt to get the fate of  

the appellant sealed by getting her statement recorded.  Instead of drawing  

the  correct  inferences,  the  Appellate  Court  went  on  to  record  the  

impossible  findings.   The  Appellate  Court  seems  to  have  been  more  

disturbed by the fact that the appellant had challenged the integrity of the  

counsel for the parties and asked a question as to why should the counsel  

for the respondent prepare a Written Statement against the wishes of the  

respondent.  The Appellate Court went on to say:-

“Merely because both the counsel sit on the same bench and have a  common clerk and that the suit was decided on the same day when  it  was  present in  the Court,  it  would  not,  by itself,  prove that  the  judgment  and  decree  were  obtained  by  fraud  and  misrepresentation.”

To say that ‘we are surprised’,  would be an understatement.   To  

support this perverse finding, the Appellate Court went on to record the  

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findings regarding the Caveat and the statement of the appellant recorded  

in those proceedings (?).  We are fully convinced that this was nothing, but  

a  towering  fraud  played  upon  an  illiterate  and  helpless  widow,  whose  

whole inherited property was tried to be grabbed by Daya Ram and/or the  

respondents herein.

11. Very unfortunately, all this has escaped the notice of the High Court,  

who passed a very casual judgment without being bothered about these  

glaring facts.  We are of the firm opinion that a whole suit No. 253 of 1985,  

decree  passed  thereupon  on  26.3.1985  and  the  subsequent  Caveat  

proceedings  were  nothing  but  a  systematic  fraud.   There  cannot  be  a  

better  example  of  a  fraudulent  decree.   We are  anguished  to  see  the  

attitude of the Court, who passed the decree on the basis of a plaint and a  

Written  Statement,  which  were  filed  on  the  same  day.   We  are  also  

surprised  at  the  observations  made  by  the  Appellate  Court  that  such  

circumstance could not, by itself, prove the fraudulent nature of the decree.

12. A fraud puts an end to everything.  It is a settled position in law that  

such decree is nothing, but a nullity.   It  has come in the evidence that  

when  the  respondents  herein  started  disturbing  the  possession  of  the  

appellant and also started bragging about a decree having been obtained  

by them, the appellant chose to file a suit.  In that view, her suit filed in  

1990 would be absolutely within time.  The casual observation made by  

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the High Court that her suit would be barred by limitation, is also wholly  

incorrect.

13. On the basis of the conclusions that we have reached above, we  

proceed to set aside the judgment of  the High Court,  as well  as of  the  

Appellate Court and restore the judgment of the Trial Court.  The appeal is  

allowed with the costs estimated at Rs.25,000/-.

………………………………….J. (V.S. Sirpurkar)

…………………………………….J. (Surinder Singh Nijjar)

New Delhi; February 8, 2010.

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