Hemant Gupta, J. - (1.) DEFENDANT No. 3 is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court on 14.1.2005, whereby mutation No. 3510 with regard to inheritance of the share of Smt. Jangir Kaur in favour of Smt. Choto was declared null and void and the decree dated 14.12.1991 in a suit filed by Jaswant Singh and his son Gobinder Singh (the present, appellant) against Choto and the decree dated 19.5.1992 suffered by Jaspal Kaur in favour of the present appellant was set aside holding that the same was not binding on Jaspal Kaur plaintiff.
(2.) ONE Jasmer Singh, who died on 10.10.1984 had two wives, namely, Partap Kaur and Jangir Kaur. Said Jasmer Singh had son Jaswant Singh and daughter Choto out of his wedlock with Partap Kaur and daughter Jaspal Kaur out of his wedlock with Jangir Kaur. There was a settlement wherein Jasmer Singh, Partap Kaur, Jangir Kaur and Jaswant Singh got 1/4th share each in the land measuring 676 kanals 12 marlas. Such facts are not disputed by any of the parties at this stage. 2.1 Jangir Kaur, mother of the plaintiff died on 15.10.1985. The present suit for declaration and for joint possession was filed on 24.1.1994. The plaintiff challenged mutation No. 3510 regarding the estate of Jangir Kaur in favour of Choto and subsequent decree suffered by Choto regarding share of Jangir Kaur in favour of Jaswant Singh on 14.12.1991. The challenge was also to a decree dated 19.5.1992 suffered in favour of the present appellant allegedly by Jaspal Kaur, plaintiff. It is alleged that the plaintiff is the only daughter of Jangir Kaur out of her wedlock with Jasmer Singh and thus, entitled to succeed her entire 1/4th share. Choto, daughter of Jasmer Singh out of his wedlock with Partap Kaur has wrongly got the mutation sanctioned in her favour alleging herself to be daughter of Jangir Kaur and thus, the said mutation is illegal since Choto could not succeed to the estate of Jangir Kaur and, therefore, she could not even suffer the decree regarding the share of Jangir Kaur in favour of Jaswant Singh. On the other hand, the hand, the decree dated 19.5.1992 was challenged on the ground that the appellant has got the said decree by impersonation and fraud and thus, not binding on the plaintiff. The learned trial Court returned a finding that Jaspal Kaur is the sole daughter of Jangir Kaur, out of her wedlock with Jaswant Singh and that Choto has got sanctioned mutation of the estate of Jangir Kaur wrongly but the suit was dismissed holding the same to be barred by limitation. The decree dated 19.5.1992 was found to be suffered by Jaspal Kaur and thus, the suit was dismissed in its entirety. However, the learned first Appellate Court affirmed the finding regarding Jaspal Kaur plaintiff being daughter of Jangir Kaur out of her wedlock with Jasmer Singh and held that Choto was in fact, daughter of Partap Kaur out of her wedlock with Jasmer Singh and thus Choto is not entitled to succeed to the estate of Jangir Kaur. Consequently, the mutation and the decree in respect of estate of Jangir Kaur was set aside. The Court also found that the decree dated 1.9.5.1992 allegedly suffered by Jaspal Kaur, is an act of impersonation and fraud and thus, not binding on the plaintiff and that since the plaintiff has filed suit on the basis of title having inherited the same from her mother Jangir Kaur, the suit cannot be said to be barred by limitation.
(3.) BEFORE this Court, learned Counsel for the appellant has vehemently argued that the first Appellate Court has not taken into consideration the statement of DW2 Param Pal Singh, Advocate, who has categorically deposed that the plaintiff was the same woman, who appeared before the Court, when she made statement to suffer decree in favour of the appellant on 6.5.1992. Once, the identity of the plaintiff is established, the finding recorded that the decree is actuated by fraud and misrepresentation is not tenable. It was also argued that the plaintiff has suffered a decree on 25.1.1992 in favour of her brother Nachhattar Singh in respect of the land inherited from her maternal side situated at village Tamkot and also suffered a decree in respect of the land inherited by her from paternal side on 19.5.1992. Therefore, the conduct of the plaintiff in suffering the consent decree cannot be said to be an act of fraud or misrepresentation.;