Amit Rawal, J. - (1.) The appellants-defendants are aggrieved of the dismissal of the suit claiming possession on the premise that Sher Kaur (since deceased) now represented by the Lrs-appellants, sought possession of 1/3 rd share i.e. 99 kanals 3 marlas of the suit property situated within revenue estate of Village Mohra, Tehsil and District Ambala and as well as for setting aside the judgment and decree dated 06.02.1996, Ex.P-10 and judgment and decree dated 22.01.1996, Ex.P12 passed in Civil Suit No.86 of 1996 and Civil Suit No.1064 of 1995 respectively, unregistered Will dated 01.03.1999 and mutation effected thereupon, much less, the subsequent entries in the revenue record on the ground that Sher Kaur was 1/3rd shareholder in the property of his brother, Sher Singh, by virtue of family settlement because Sher Singh and Sher Kaur inherited the property from their common ancestor, Ujjagar Singh. Sher Singh had no son but was having only two daughters namely Nasib Kaur and Chint Kaur. He gave 1/3rd share to the plaintiff-Sher Kaur and 1/3rd share each to his daughters vide judgment and decree dated 25.05.1991, Ex.P5, passed in Civil No.167 of 1991 titled as "Sher Kaur Vs. Sher Singh."
(2.) Mr. Arun Jain, learned Senior Advocate assisted by Mr. Arnav Sood, Advocate appearing for the appellants submitted that in the aforementioned suit, Mr. Randhir Singh, Advocate appeared for the plaintiff-Sher Kaur and Mr. Om Parkash, Advocate appeared for Sher Singh-defendant. The entire case revolves around the documentary evidence. Sher Singh at the back of Sher Kaur instituted a suit bearing No.1064 on 21.12.1995 and somebody else impersonated as Sher Kaur and the aforementioned suit was decreed vide judgment and decree dated 22.01.1996 whereby the judgment and decree dated 25.05.1991 was set aside, in essence, 1/3 rd share, which Sher Singh had given to Sher Kaur, reverted back to him. In the aforementioned suit i.e. Suit No.1064 of 1995, Om Parkash, Advocate, who had earlier appeared for Sher Singh in Civil Suit No.167 of 1991, appeared for Sher Kaur and one Rameshwar Dass, Advocate for Sher Singh. Without wastage of any further time, another suit filed against him by Mewa Singh son of Bachan Singh, husband of Nasib Kaur daughter of Sher Singh and by virtue of the same, aforementioned 1/3rd share was decreed in favour of Mewa Singh and intriguingly, Randhir Singh Advocate, who had appeared for Sher Kaur in the suit resulting into judgment and decree dated 25.05.1991, appeared for Mewa Singh and Rameshwar Dass, Advocate who had appeared for Sher Singh in Civil Suit No.1064 of 1995 that resulted into judgment and decree dated 22.01.1996, appeared for him again. All these facts and evidence has been brought on record. Even the document expert, Devendra Prasad had been examined as PW2. Sher Kaur also appeared in the witness box as PW1 and stated that she never appeared or made statement in the court admitting the claim of Sher Singh and for proving this fact, the thumb impression on the statement dated 12.01.1996 given before the Court in Civil Suit No.1064 of 1995 was examined by the expert, who submitted his report dated 29.03.2009 stating that thumb impression Mark X-1 on the statement dated 12.01.1996 is doubly affixed and not clear to determine the identity or otherwise with respect to the standard thumb impressions marked S-1 to S-4. On the contrary, the defendants did not produce any evidence to suggest that Sher Kaur appeared in the Court and suffered a statement on 12.01.996. The factum of appearance of Advocates by Sher Singh itself results into a fraud having been played upon Sher Kaur. The defendants had summoned Om Parkash, Advocate but the report came that he had left the practice but again summons were sent and the report came that he was not well. In fact, he refrained himself from appearing in the Court or was escaping to be examined and cross-examined by not appearing before the Court. The defendants could not produce any evidence which could suggest that the plaintiff-Sher Kaur actually appeared in the Court to make the statement on 12.01.1996. In these circumstances, the Courts below ought to have drawn adverse inference against the defendants, thus, urges this Court for setting aside the judgments and decrees passed by the Courts below by determining the following substantial questions of law:- "(i) Whether the impugned judgments and decrees passed by the Courts below are perverse to evidence available on file? (ii) Whether the presumption of the presence of the plaintiff Sher Kaur in Court without any evidence for the side of the defendants can be raised when the plaintiff has produced the affirmative evidence of non-appearance in the court? (iii) Whether the onus of proving that the plaintiff appeared in the Court and made statement dated 12.01.1996 was upon the defendants when the plaintiff categorically stated and proved by document expert that she never appeared in the Court?
(3.) On the contrary, Mr. J.S. Cooner, learned counsel appearing for the respondents-defendants submitted that the judgment and decree dated 25.05.1995 was fraudulently obtained by Sher Kaur against Sher Singh. It is a matter of co-incidence that the advocate who appeared for Sher Singh in judgment and decree dated 25.05.1991, had appeared for Sher Kaur in judgment and decree dated 22.01.1996. The respondents-defendants have intentionally not got the vakalatnama and other documents bearing the thumb impression of Sher kaur examined as they actually bore her thumb impression. The defendants have brought on record documents Ex.D1 to D19 and examined various witnesses to prove their case, in essence, the appellants-plaintiffs filed to discharge the onus and rightly so, the Courts below have drawn the presumption against the appellants-plaintiffs. The plaintiffs have failed to prove the nature of the property being ancestral one. The ingredients of fraud or impersonation are absent. The mutation had been based on judgment and decree dated 06.02.1996 and Will dated 01.03.1999, Ex.D1, thus, urges this Court for confirming the findings rendered by the Courts below.;