Punjab-Haryana High Court
Vinay Pal Singh And Anr. vs Vijay Kumar Singh And Ors. on 21 August, 1997
Equivalent citations: (1998)118PLR421
JUDGMENT V.K. Jhanji, J.
1. This shall dispose of Regular Second Appeals No. 2670 and 3203 of 1996. Facts are taken from R.S.A. No. 2670 of 1996.
2. The Regular second Appeals have been preferred by the defendants against the judgment and decree of theCourts below whereby plaintiffs have been declared to be owners in possession of the suit land and the adverse entry in the revenue record showing defendant No. 1 to be in cultivating possession of the land in dispute to be ineffective against the rights of the plaintiffs. A further decree for permanent injunction restraining the defendants from taking forcible possession or otherwise interfering in the enjoyment of the plaintiffs over the suit land has also been passed in favour of plaintiffs and against the defendants. This case has a chequered history and in order to bring the litigation to an end, it becomes necessary to give the facts of the case in detail.
3. One Mahi Pal Singh @ Hari Pal Singh was the owner of the land in dispute, besides other land in villages Udaipuri and Goela, District Gurgaon. He died on 25.1.1948. His widow, Jawala Devi inherited his property. Mutation was sanctioned in her favour in 1948. Since the husband of Jawala Devi had left behind much land and she being widow was not in a position to look after the land, allowed one Mukat Singh (uncle of Vinay Pal Singh, defendant No. 1) (Appellant No. 1 herein) to cultivate some portion of the land without any intention of making him as her tenant. On finding that Mukat Singh had started asserting himself to be a tenant, Jawala Devi filed suit against him for permanent injunction for preventing him from cultivating the suit land. In the alternative, she prayed for possession. On contest by Mukat Singh, suit was decreed by the trial Court and on appeal, Additional District Judge affirmed the judgment and decree of the trial Court. Regular Second No. 1566 of 1974 filed by Mukat Singh was dismissed by this Court on 8.11.1982. The judgment in the case of Mukat Singh is reported in 1983 P.LJ. 182.
4. At this stage, it deserves to be mentioned that during the pendency of the suit filed by Jawala Devi against Mukat Singh, i.e. on 14.3.1974 Jawala Devi, by means of three sale-deeds sold land measuring 167 kanals 12 marlas in favour of Vijay Kumar Singh and Jagdish Parkash (respondents 1 and 2 herein). Subsequently, the vendees, Vijay Kumar Singh and Jagdish Parkash, transferred some portion of the land in favour of Satish and Kuldeep (respondents 3 and 4) by way of civil court decree. Thus, by virtue of three sale-deeds dated 14.3.1974 and the civil court decree, all the four respondents became owners of land measuring 167 kanals 12 marlas. While die Regular Second Appeal filed by Mukat Singh was pending in this Court, these respondents got themselves impleaded as respondents in the said appeal. On dismissal of the Regular Second Appeal filed by Mukat Singh, respondents in execution of the decree took possession from Mukat Singh and a report in this regard was entered in the Rapat Roznamacha dated 8.10.1983. With the delivery of possession, second round of litigation started. Vinay Pal Singh, nephew of Mukat Singh, claimed himself to be owner in possession of the entire land which was left by Mahi Pal Singh after his death on the ground that Mahi Pal Singh daring his life time had expressed his desire for adopting him as his son and after his death, his widow, Jawala Devi adopted him as his son to her husband, Mahi Pal Singh. Vinay Pal Singh filed suit for declaration that he is owner in possession, being the adopted son of Mahi Pal Singh and Jawala Devi and the sale-deeds executed by Jawala Devi in favour of the respondents are null and void as Jawala Devi had no authority to sell the land. The decree suffered by Vijay Kumar Singh and Jagidsh Parkash in favour of Satish and Kuldeep were also challenged being null and void and fictitious. As a consequential relief, he sought that the respondents be restrained from interfering in his possession. Later he got the suit amended and in the alternative, relief of possession was claimed as it was alleged that during the pendency of the suit he was dispossessed. The suit was filed on 10.11.1983, i.e. two days after the respondents had taken possession in execution of the decree passed against Mukat Singh. White the suit filed by Vinay Pal Singh was pending, the respondents filed Suit No. 462 on 28.5.1984 for permanent injunction restraining Vinay Pal Singh and his son, Mahesh Kumar (appellants herein) from interfering in their possession. In the suit, respondents alleged that after they had taken possession in execution of the decree, their possession in the Khasra girdawari for Kharif 1983 was recorded but Vinay Pal Singh in collusion with the revenue Staff got the entry for the crop Rabi 1983 recorded in his favour. In their suit, respondents made a clear statement in regard to their ownership of the land on the basis of sale-deeds executed in their favour and the civil court decree which was passed inter se the respondents. On an objection raised by Vinay Pal Singh that on the same cause of action suit filed by him is pending, the suit filed by the respondents was stayed Under Section 10 of the Code of Civil Procedure. The suit filed by Vinay Pal Singh on the basis of alleged adoption was dismissed by the trial Court and on appeal, the finding of the trial Court was affirmed. On second appeal by him this Court while affirming the findings of the Courts below that Vinay Pal Singh has failed to prove the adoption under the custom, also held that Jawala Devi was in possession of the land and in the revenue record, it was she who was recorded as owner. This Court held that the respondents purchased land from Jawala Devi and became owners thereof. It was also held that the Vinay Pal Singh was never in possession of the land. The possession of the respondents was recognised. It is the admitted case of the parties that the matter was taken to the Supreme Court in Special Leave Petition, but the same too was dismissed.
5. With the decision of the suit filed by Vinay Pal Singh right upto the Supreme Court third bout of litigation started when the respondents herein got suit No. 462 revived as the same had been stayed Under Section 10 of the Code of Civil Procedure. After revival of the suit, respondents also made an application to amend the plaint for seeking the relief of declaration in addition to the relief of permanent injunction already prayed. The amendment was sought on the ground that while the suit had remained stayed, the subsequent entries in the revenue record showing Vinay Pal Singh to be in possession are void, nonest, unauthorised, contrary to facts existing at the spot and do not adversely affect their rights in the suit land. On con test by Vinay Pal Singh, amendment was allowed subject to payment of costs. Vinay Pal Singh accepted costs. Amended plaint was filed and an opportunity was given to Vinay Pal Singh to file amended written statement. In the meantime, his son Mahesh Kumar who had earlier been proceeded against ex-parte in the suit filed by respondents, made an application for setting aside the ex-parte proceedings against him. Trial Court dismissed the application but on revision to this Court the order was set aside and he was allowed to contest the suit. On appearance before the trial Court, he' filed separate written statement. In his separate written statement, Mahesh Kumar apart from denying the averments made in the plaint, also set up counter claim. In his counter claim, he alleged that the sale made by Jawala Devi in favour of respondents is not binding on him as the property was joint Hindu family property and the sale made in favour of the respondents was without any legal necessity. Trial Court decreed the suit of the respondents and in appeal, the findings of the trial Court have been affirmed by the Additional District Judge.
6. Mr. M.L. Sarin, Sr. Advocate, counsel for the appellants has not touched the merits of the case. He has raised four contentions, all technical in nature.
7. His first contention is that the relief of declaration had become barred by limitation and so, the respondents were not entitled to any declaration. In this context, he contended that the suit for injunction was filed in the year 1984 whereas suit for declaration was instituted by amendment of plaint vide order dated 1.12.1993. His contention is that as the amended suit had been filed after more than three years of cause of action which arose in the year 1984, the same was barred by limitation and had to be dismissed on that ground alone.
8. His second contention is that order dated 1.12.1993 allowing amendment of the plaint by the trial Court is manifestly illegal for the reason that cause of action arose to the respondents in Rabi 1984 when entry was recorded in favour of the appellants and by amendment, the nature of the suit was completely changed. He contended that there was no justification or excuse for the delay in seeking amendment of the plaint.
9. His third contention is that Jangbir Singh, holder of general power of attorney of respondents 1 and 2, had no authority to file suit on their behalf as the attorney given to him did not confer authority on him to file the suit.
10. Mr. Sarin's fourth and the last contention is that though appellant No. 2, namely, Mahesh Kumar, in his written statement had set up a counter claim but the Courts below failed to determine the counter claim set up by the said appellant and so, the matter deserves to be remanded to the trial Court for giving decision on the counter claim.
11. Against this, Mr. Arun Jain, Advocate, counsel for the respondents has urged that in the previous litigation, a finding has already been recorded in regard to appellants' not being in possession and respondents have been found to be in possession. The sale made in their favour has been held to be bona-fide and for consideration. He contended that after it has been held that Vinay Pal Singh is not the adopted son of Jawala Devi, respondents are not Only entitled to declaration prayed for in the suit but also to the injunction for restraining the appellants from interfering in their possession. He contended that the objections raised herein are without any substance.
12. After hearing the learned counsel for the parties and going through the record, I am of the view that the appeals have no merit and deserve to be dismissed with costs. It is not in dispute that in execution of the decree passed against Mukat Singh, respondents being the vendees from Jawala Devi came in possession of the land in suit. A report in regard to delivery of possession was entered in the Rapat Roznamcha dated 8.10.1983. The possession of the respondents came to be recorded in khasra girdawari from Kharif 1983 but in the next crop Rabi 1983, it was recorded in favour of appellant No. 1. Because of the unauthorised change of entry in the Khasra girdawari, respondents had a reasonable apprehension of their forcible dispossession at the hands of the appellants and that led to the filing of suit by them for injunction. Relief of declaration that the entries which came to be recorded in the khasra girdawari showing the appellant No. 1 to be in possession are wrong, null and void and ineffective against their rights, became available to the plaintiffs during the pendency of the suit. The suit had already been stayed Under Section 10 of the Code of Civil Procedure and on restoration of suit at the first available opportunity the respondents applied for amendment of the plaintiff which on contest was allowed. The relief of declaration in this case is only an ancillary one and flows from the cause of action already pleaded. More so, suit for declaration of title is not barred so long as plaintiffs right to such property is a subsisting one. The right to bring declaratory suit is a continuing right so long as right to property itself is subsisting. In the previous litigation, the title of the respondents to the suit land had already been established and therefore the contention, of counsel for the appellants that the relief of declaration had become barred by time, is without any substance.
13. As regards the second contention of counsel for appellants, suffice it to say, the amendment of the plaint was allowed subject to payment of costs. Appellant No. 1. accepted costs and filed written statement. With regard to the contention that appellant No. 2 had not accepted costs, it is only to be stated that appellant No. 2 is the son of appellant No. 1 and is claiming his right to the property only through his father. This being the position, the objection from him that the amendment was wrongly allowed cannot be sustained. Moreover, on amendment of the plaint appellant No. 2 filed separate written statement but no objection with regard to allowing of amendment was taken in the written statement. It is now too late for him to say that the amendment was wrongly allowed.
14. Coming to the third contention, on perusal of power of attorneys, Exhibits. P-4, P-S and P-6, I am of the view that the Attorney Was given all the powers in respect of the property belonging to respondents 1 and 2 and therefore, Attorney had a right to file suit on their behalf,. It may also be observed at this stage that this very Attorney had purchased land on behalf of respondents 1 and 2 and he was the one who had signed the sale-deed on their behalf. Again this very Attorney contested the suit, filed by the appellants, on behalf of respondents 1 and 2 right upto the Apex Court. No such objection was ever raised by the appellants that the Attorney had no power or was not a authorised person. This contention is thus, without any substance.
15. As regards the fourth and the last contention qua non-consideration of the counter claim by the Courts below, I am of the view that since the counter claim was not pressed, no decision in this regard was given by the Courts below. Otherwise too, the counter claim has no merit. In the counter claim, the allegations of appellant No. 2 are that the land in suit is a joint Hindu family property and his father, Vinay Pal Singh constituted joint Hindu family property along with Jawala Devi On these allegations, his claim is that on his birth, he became a coparcener in the joint Hindu family property along with his father and so, Jawala Devi had no right or authority to sell the property of joint Hindu family to the respondents. Appellant No. 2 can succeed in his claim only if it is proved that his father, Vinay Pal Singh, was adopted by Jawala Devi as her son. As already noticed, in the suit filed by Vinay Pal Singh a finding has already come that he is not the adopted son of Jawala Devi. This finding has been affirmed right upto the Apex Court. Thus, the last contention is also without any force.
16. Resultantly, both the appeals, R.S.A. No. 2670 and 3203 of 1996 shall stand dismissed with costs. Costs are quantified at Rs. 5,000/- in each appeal.