VINOD K.SHARMA, J. - (1.) PRESENT regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which suit for declaration filed by the plaintiff-appellant was ordered to be dismissed.
(2.) THE plaintiff-appellant had brought a suit on the ground that the suit land was situated in three villages namely Kalri Jagir, Kalra and Makhali Tehsil and District Karnal. The suit land comprising half share of land measuring 12 kanals 11 marlas as detailed in para No. 1(a) of the plaint as per Jamabandi for the year 1969-70 situated at village Kalri Jagir, half share of land measuring 8 kanals 16 marlas as per Jamabandi for the year 1971-72 situated in village Kalra and 1/3 share of land measuring 68 Kanals 11 marlas as per jamabandi for the year 1973-74 of the land situated at village Makhali Tehsil and District Karnal. The plaintiff claimed to be owner in possession of the suit land and defendant No. 2 along with brothers and sisters was also claimed to be co-sharers in the khata of the suit land. It was claimed that defendant No. 2 owned 1/4 share in the land situated in village Kalri Jagir, 1/4 share in the land situated at village Kalra and 1/3 share in the land situated in village Makhali. It was further claimed that about a month ago, the defendants restrained the plaintiff-appellant from cultivating the suit land and threatened that in case he entered the suit land he would be killed. It was also stated that the defendants claimed that the suit land was got decreed in their favour. The case set up by the plaintiff was that on inquiry from the court he came to know that the defendants have secured a decree regarding the suit land in favour of defendant No. 1 and against the present plaintiff on 2.3.1977 passed by Shri Hari Ram Senior Sub Judge, Karnal in suit No. 45 of 1977 titled as Raj Kumar v. Bija Ram. The said decree was challenged to be fictitious and obtained by fraud and misrepresentation of facts, betrayal and without jurisdiction. It was claimed that the impugned decree was illegal, void and not binding on the plaintiff on the ground that the plaintiff never received any summons from the Court. Further that the plaintiff never intended nor he ever transferred any part of the suit land. It was further claimed that he never appeared before the court nor he ever made any statement admitting the claim of the plaintiff therein. It was further claimed that the plaintiff had never filed any written statement nor executed any power of attorney in favour of any counsel and further that the defendant No. 2 is the Sarpanch of village Kalri Jagir and is very shrewd, cunning and clever person. It was further claimed that the plaintiff-appellant had desired to get the land partitioned and for this purpose the plaintiff was brought to Karnal on the Basta of an Advocate about 4 and half months ago by representing to the plaintiff that he would engage a counsel for getting the suit land partitioned through court. It was further alleged that defendant No. 2 obtained the thumb impression of the plaintiff on many papers and the plaintiff was taken to the court after filing application for partition. The thumb impressions of the plaintiff were taken for partition of the suit land. It was claimed that he has thumb marked the blank papers which was subsequently converted into written statement and Vakalatnama by taking undue advantage of illiteracy and ignorance of the plaintiff. The papers were said to be forged documents. The suit was contested by both the defendants and the pleas taken by the plaintiff was controverted. It was asserted that the plaintiff was fully aware of the decree against him and subsequently it was on the instruction of his wife and other persons that he had filed the present suit on false grounds. The plea of fraud and misrepresentation was denied and it was claimed that the plaintiff had transferred the suit land willfully in view of the family settlement. The plaintiff was said to have appeared in the court and accepted the claim of defendant No. 1 as he was stated to be living with the plaintiff and serving him. It was also claimed that the Presiding Officer had made inquiries and told him the result of his statement recorded in court. Defendant No. 1 claimed himself to be the grand-son in relation of the plaintiff. Certain preliminary objections were also raised.
(3.) ON the pleadings of the parties the following issues were framed by the trial court :- 1. Whether the plaintiff has no locus-standi to file the present suit ? OPD 2. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ? OPD 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ? OPD 4. Whether the decree is fictitious, obtained by fraud, misrepresentation of facts, against facts and due to betrayal, without jurisdiction illegal not binding upon the plaintiff and liable to be set aside on the ground mentioned in para No. 3 of the plaint ? OPP 5. Whether the defendants are entitled to special costs under Section 35-A of CPC ? OPD 6. Whether the plaintiff is in possession of the land in suit ? OPD 7. Relief. ;