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2016 (2) TMI 1380

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..... ring at the relevant time was stated to be Epilepsy - In order to substantiate the plea of ailment, the plaintiff got examined Dr. Surjit Singh PW-4, who stated that Jagtar Kaur was suffering from Epilepsy from the years 1976 to 1982 and she got treatment from him upto the year 1984. The deposition of Doctor was not in the context of proving that she was confined on account of Epilepsy and was not in a position to re-capitulate the facts and there was a loss of memory or she was totally incapacitated on account of such ailment in terms of faculty of mind and physical movements. In view of bar created under Order 23 Rule 3-A CPC, no suit shall lie to set aside the decree on the ground that compromise on which the suit was based was not lawfu .....

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..... 3-A CPC. The plaintiff cannot be held to be co-sharer in the land and suit based on title is within limitation. Appeal allowed. - Raj Mohan Singh, J. For Appellant: A.S. Gulati for S.S. Grewal For Respondents: Harish Mehta JUDGMENT Raj Mohan Singh, J. 1. Defendants are in second appeal against judgment and decree dated 21.04.1987 passed by Additional District Judge, Sangrur whereby judgment and decree dated 26.04.1985 passed by Sub-Judge, 1st Class, Dhuri was set aside and judgment and decree dated 06.10.1979 was declared ineffective, illegal, null and void and against the rights of the plaintiff. Plaintiff Jagtar Kaur filed a suit for declaration to the effect that she is owner in possession of 1/4th share measuring 10 Bighas 3 Biswas 1 .....

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..... to prove their case. 6. Trial Court dismissed the suit holding the suit to be not maintainable and also held the suit to be barred by limitation and civil Court decree dated 06.10.1979 was upheld vide judgment and decree dated 26.04.1985. 7. Plaintiff filed appeal against the judgment and decree passed by the trial Court. The lower Appellate Court accepted the appeal vide judgment and decree dated 21.04.1987. Hence the present appeal. 8. If the present appeal the controversy can be tested on the following substantial questions of law:- 1. Whether independent suit for declaration and permanent injunction is maintainable in view of bar created under Order 23 Rule 3-A CPC? 2. Whether civil Court decree dated 06.10.1979 being a compromise decr .....

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..... context of proving that she was confined on account of Epilepsy and was not in a position to re-capitulate the facts and there was a loss of memory or she was totally incapacitated on account of such ailment in terms of faculty of mind and physical movements. In common parlance Epilepsy/Mirgi is not such an ailment which would confine the patient totally for all time to come, rather mental condition in such a disease is intermittently impaired and no such permanent feature is attached to such ailment. 14. The statement of Doctor was not sufficient to draw any such presumption as to whether the plaintiff was totally incapacitated on account of such ailment. Secondly the plaintiff appeared in the earlier suit after engaging an Advocate and ma .....

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..... wered in favour of the appellants to hold that subsequent suit is barred in terms of Order 23 Rule 3-A CPC and subsequent decree dated 06.10.1979 was not required to be compulsorily registered. 19. Since the civil Court decree dated 06.10.1979 was not fraudulent, therefore, filing of suit on 26.08.1983 was patently barred by limitation. Apparently marriage of the plaintiff was solemnised about 40 years back. Her father died about 25 years back. Her father had two sons and two daughters. The statement of Dr. Surjit Singh was not sufficient to demonstrate the ailment of plaintiff to be continuous for the period of 30 years. No particulars of treatment have been brought on record with reference to diagnosis. Even, if, the decease Epilepsy is t .....

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