IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.7/2020 Date of Decision: 05th December, 2025. Purshotam Chand and Ors. .....Appellants Versus Jagat Ram and Ors. …..Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Vishwas Kaushal, Advocate, vice Mr. Vivek Negi, Advocate. For the Respondent: Mr. Sumit Sharma, Advocate, for respondents No.1, 3(b), 4(a), 4(c), 4(d), 5, 10(a) to 10(d) and 11(a). Mr. Neel Kamal Sharma, Advocate, for respondent No.2(a). Respondents No.3(a), 3(c), 3(d), 4(b), 6 to 9, 11(b), 11(c) and 15 are proceeded against ex parte. Bipin Chander Negi, Judge (oral). The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 30.09.2019, passed by the learned Additional District Judge, Hamirpur, District Hamirpur, HP in Civil Appeal No.08/2014, partly affirming the judgment and decree dated 19.12.2013, passed by the learned Civil Judge (Senior Division), Nadaun, District Hamirpur, HP, in Civil Suit No.161 of 1996. 2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned trial Court. The facts 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 giving rise to the present second appeal are that the plaintiffs- respondents filed a civil suit before the learned trial court seeking a declaration that the decree dated 12.09.1992 passed in Civil Suit No.28 of 1990 titled Shri Sartaza and others versus Shri Paras Ram and others, concerning the suit land, was fraudulent, collusive, null and void and not binding on their rights, with a consequential relief of permanent prohibitory injunction. It was pleaded that the plaintiffs had earlier obtained a decree for possession in Civil Suit Nos.173 of 1980 and 284 of 1983, which was upheld in appeal. The defendants-appellants, however, filed Civil Suit No.28 of 1990 seeking a declaration of ownership based on the expiry of the redemption period, suppressing the factum of the earlier decree and without impleading the plaintiffs as parties, thereby procuring an ex- parte decree fraudulently and in collusion. The suit was resisted by defendant No.1 on grounds including lack of cause of action, estoppel, limitation and suppression of material facts, asserting that the decree in Civil Suit No.28 of 1990 was valid and binding. 3. On the pleadings of the parties, the following issues were framed by the learned trial court on 22.06.1999:- 1. Whether the decree dated 12.09.1992 passed in civil suit No.28/90 titled as Sartaza and Ors Versus Paras Ram and Others is fraudulent, collusive and hence null and void and not binding upon the rights of the plaintiffs as alleged?OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to relief of permanent prohibitory injunction as prayed for?OPP 3 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD. 5. Whether the suit is not within limitation? OPD 6. Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD 7. Relief. 4. After evidence was led, the trial court initially decreed the suit on 21.11.2009. The defendants filed a first appeal before the District Court. In the first appeal, the defendants contended that the trial court's judgment was against law and facts, based on conjectures, that it failed to frame proper issues and correctly assign the burden of proof, that it traveled beyond the pleadings, and that it suffered from material illegality and irregularity. They also raised a specific ground regarding the passing of the decree against a deceased plaintiff. The first appellate court, vide judgment and decree dated 27.02.2013, accepted the ground regarding the deceased plaintiff, set aside the decree and remanded the matter to the trial court. Upon remand, after substitution of legal heirs, the trial court again decreed the suit on 19.12.2013, holding the decree in Civil Suit No.28 of 1990 to be obtained by fraud and collusion. 5. The defendants, feeling aggrieved by the judgment and decree dated 19.12.2013, preferred a first appeal before the learned Appellate Court. In the said appeal, the appellants reiterated their contentions that the trial court's judgment was against the weight of evidence, based on erroneous appreciation of facts and law, that it failed to consider material aspects, and 4 that the findings on fraud and collusion were perverse. The first appellate court, after considering the submissions, partly allowed the appeal and upheld the judgment and decree of the trial court. Hence, the present second appeal. 6. Heard counsel for the parties and perused the impugned judgements. 7. In the present case, it is conclusively established that the plaintiffs’ title to the suit land flows from the decree dated 23.06.1952 passed in Civil Suit No. 65/1951. Relying on this foundation, the plaintiffs instituted Civil Suit Nos. 173/1980 and 284/1983 against the defendants and others for possession. This suit was decreed in favour of the plaintiffs on 25.04.1986, and the first appeal preferred by the defendants was dismissed by the learned District Judge, Hamirpur, on 19.08.1991. The plaintiffs later executed this decree and obtained formal possession of the suit land on 15.11.2006, during the pendency of the present declaratory suit, as evidenced by the warrant of possession and the report of the executing court. 8. In regard to the impugned decree dated 12.09.1992 in Civil Suit No. 28/1990, the record reveals that the said suit was filed by the present defendants against a different set of individuals, namely Paras Ram and others. The plaintiffs in the present suit were not impleaded as parties. The suit was decreed ex-parte, declaring the defendants as owners based on the alleged non-redemption of the land. A critical examination 5 of the judgment in that suit confirms that the defendants herein did not bring to the notice of that court the existence of the prior judgment and decree dated 25.04.1986, which was directly adverse to their claim and in favour of the present plaintiffs. This omission was neither accidental nor innocent; it was a deliberate suppression of a material judicial fact. 9. Moreover, the act of the defendants in instituting Civil Suit No. 28/1990 without impleading the plaintiffs, and more egregiously, in consciously withholding from that court the knowledge of the 1986 decree which conclusively determined the rights of the parties in relation to the same land, constitutes a clear fraud upon the court. A judgment or decree obtained by fraud is a nullity and cannot be sustained. The Supreme Court in Indian Bank v. Satyam Fibres (India) Pvt. Ltd., 1996 5 SCC 550 observed that fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. In Chittaranjan Das v. Durgapore Project Ltd. 99 CWN 897, it was held Suppression of a material document which affects the condition of service of the Petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation. 6 10. Based on the aforesaid, it can be said that the defendants, by their conduct, induced the court in Civil Suit No. 28/1990 to pass a decree based on an incomplete and misleading factual presentation. Therefore, the finding of the trial court, as affirmed by the first appellate court, that the decree dated 12.09.1992 is null and void, is legally sound and is hereby upheld. 11. Regarding the allegation of collusion, this Court finds that the first appellate court correctly distinguished between fraud and collusion. While the non-contesting of the suit by the defendants in Civil Suit No. 28/1990 facilitated the fraud, it does not, by itself, constitute evidence of a prior secret agreement or conspiracy between those parties (the plaintiffs and defendants in that suit) to deceive the court. There is no other independent evidence on record to establish such a collusive understanding. Consequently, the finding of collusion recorded by the trial court is set aside, and the modification made by the first appellate court on this point is affirmed. 12. The fundamental prerequisite for granting a prohibitory injunction is the demonstration of lawful possession of the suit property at the time of filing the suit. The Hon’ble Supreme Court has in the matter of Anathula Sudhakar vs. P Buchi Reddy & Ors, 2008 (4) SCC 594 clarified the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and or 7 possession with injunction as consequential relief which reproduced as under: Para 11.1- When a Plaintiff is in lawful or peaceful possession of a property and such possession is disturbed or threatened by the defendant, a suit for injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2- Where the title of the Plaintiff is not disputed, but he is not in possession his remedy is to file a suit for possession and seek in addition, if necessary an injunction. A person out of his possession cannot seek the relief of injunction simpliciter, without claiming the relief for possession. 11.3- Where the Plaintiff is in possession but his title to the property is dispute, or under a cloud, or where the defendant asserts title thereto and there is also thereat of dispossession from the defendant, the Plaintiff will have to sue for declaration of title and consequential relief of injunction. Where the title of the Plaintiffs is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 8 13. The plaintiff No. 1, Jagat Ram (PW1), admitted in his cross-examination that the suit land was in the possession of defendant No. 1, Sartaza, when the present suit was filed. The plaintiffs came into possession only later, on 15.11.2006, upon execution of the 1986 decree. Since they were not in possession on the date of the suit’s institution, they were not entitled to the equitable relief of injunction. The trial court erred in granting this relief. The first appellate court correctly set aside this part of the decree, and this finding is affirmed. 14. In view of the above, the judgement of the First Appellate court modifying the judgement of the Trial court is upheld. In view of the aforesaid, there arises no question of law much less a substantial question of law for the consideration of the Court. Accordingly, the appeal being devoid of merit is dismissed, so also the pending miscellaneous application(s), if any. (Bipin Chander Negi) Judge 05th December, 2025 (Gaurav Rawat/TB)