Punjab-Haryana High Court
Sukhdev Singh (Dead Through Lrs) vs Joginder Singh And Others on 9 July, 2013
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 3888 of 1994 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 3888 of 1994
Date of Decision : July 09, 2013
Sukhdev Singh (dead through LRs) .... Petitioner(s)
Vs.
Joginder Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Harish Goel, Advocate
for the petitioner(s).
Mr. Animesh Sharma, Advocate
for respondent no. 1.
None for respondents no. 2 and 3.
* * *
L. N. MITTAL, J. (Oral) :
Decree-holder (DH) Sukhdev Singh has filed this revision petition assailing order dated 07.10.1991 passed by the Executing Court and order dated 28.07.1994 passed by the lower appellate court.
This case has a checkered history. The suit land was owned by Jawala Singh. He suffered consent decree dated 30.03.1983 regarding the suit land in favour of his sister's son Joginder Singh son of Raghbir Singh - C. R. No. 3888 of 1994 2 respondent no. 1, who was accordingly declared to be owner in possession of the suit land. Mutation thereof was also sanctioned in favour of respondent no. 1 on 23.05.1983.
On 29.08.1984, Jawala Singh filed suit for possession of the suit land by seeking declaration of his ownership thereon and by assailing the consent decree dated 30.03.1983, which was passed on family settlement/oral gift. The consent decree was challenged by Jawala Singh on the ground of fraud and misrepresentation and also on the ground that it required compulsory registration and that plea of family settlement was not available. Courts below, in that suit, found that there was no fraud or misrepresentation in passing of the consent decree, but held that the decree required compulsory registration and being unregistered, did not convey title to respondent no. 1 herein and the consent decree was based on family settlement but the said basis of the consent decree was missing. The said suit filed by Jawala Singh was decreed by both the courts below. However, R. S. A. No. 2120 of 1987, preferred by respondent no. 1 herein Joginder Singh son of Raghbir Singh, has been allowed by Division Bench of this Court, vide judgment and decree dated 11.08.1988, holding that the consent decree in favour of respondent no. 1 did not require registration and it conveyed valid title in favour of respondent no. 1. Consequently, suit filed by Jawala Singh was dismissed.
C. R. No. 3888 of 1994 3
Sukhdev Singh - petitioner herein filed suit against another Joginder Singh son of Kehar Singh and his son Pritpal Singh (respondents no. 2 and 3 herein) alleging that Jawala Singh, through respondent no. 2 as Attorney, agreed to sell the suit land to the petitioner vide agreement dated 11.04.1987. Jawala Singh has since died and in view of his Will, respondents no. 2 and 3 herein, inherited the suit land from Jawala Singh. Accordingly, petitioner claimed possession of the suit land by specific performance of the agreement dated 11.04.1987. Respondents no.2 and 3 herein (defendants in the said suit) admitted the claim of the petitioner. Consequently, the said suit was decreed vide judgment and decree dated 24.11.1988. Petitioner as DH filed execution petition for execution of the said decree.
In the execution petition, respondent no. 1 herein filed objections alleging that the decree was not executable against him because he was owner of the suit land since prior to the alleged agreement dated 11.04.1987.
The DH-petitioner controverted the objections filed by respondent no. 1-objector. The Executing Court, after framing issues and recording evidence, allowed the objection petition and dismissed the execution petition, vide order dated 07.10.1991. Appeal against the said order, preferred by DH has been dismissed by learned Additional District C. R. No. 3888 of 1994 4 Judge, vide order dated 28.07.1994. Feeling aggrieved, the DH has filed the instant revision petition to challenge the aforesaid orders.
I have heard counsel for the parties and perused the case file. Counsel for the petitioner contended that consent decree dated 30.03.1983 in favour of respondent no. 1-objector was based on oral gift, and therefore, the said decree required compulsory registration and being unregistered, did not convey any title to respondent no.1-objector. Reliance in support of this contention has been placed on a judgment of Calcutta High Court in the case of Dipali Roy vs. Samir Banerjee reported as 2010 (4) ICC 473 , on a judgment of Andhra Pradesh High Court in the case of K. Bhaskaram and another vs. Mohammad Moulaa (Died) and others reported as 2005 AIR (A.P.) 524 and also on some judgments of this Court namely Deepa and others vs. Bhani (died) reptd. by her LRs reported as 1996 (1) HLR 224, Biru vs. Nanhi reported as 2007 (3) R. C. R. (Civil) 811, Bhoop Singh vs. Ram Singh Major and others reported as 1996 (1) PLR 26 and Shailesh Kumar vs. Mrs. Sandhya Gupta reported as 2002 (1) R. C. R. (Civfil) 441.
The contention is completely misconceived and devoid of merit in the facts and circumstances of the instant case. As noticed herein before, the said plea taken by Jawala Singh, in the suit filed by him to challenge the consent decree, has already been repelled by Division Bench of this Court in C. R. No. 3888 of 1994 5 judgment dated 11.08.1988 passed in R. S. A. No. 2120 of 1987. In view of the said finding pertaining to the instant case itself, the aforesaid contention cannot be accepted.
It is also worth mentioning that decree dated 24.11.1988 (sought to be executed) has been obtained by petitioner-DH in collusion with respondents no. 2 and 3 - JDs by playing fraud on the Court as well as on respondent no. 1 - objector. As noticed herein before, respondent no.l - objector had filed R. S. A. No. 2120 of 1987 in suit preferred by Jawala Singh (since deceased). In the said RSA, Jawala Singh was represented by respondents no. 2 and 3 herein as his legal heirs. The said RSA was allowed by this Court vide judgment and decree dated 11.08.1988. It was immediately thereafter that on 16.08.1988, the petitioner filed suit against respondents no. 2 and 3, who admitted the claim of the petitioner in the suit and consequently, suit was decreed vide judgment and decree dated 24.11.1988. Thus, respondents no. 2 and 3, knowing fully well that respondent no.1 - objector had succeeded in his aforesaid RSA, suffered the aforesaid judgment and decree dated 24.11.1988 in favour of the petitioner on the basis of alleged agreement to sell dated 11.04.1987 by concealing the factum of the previous suit instituted by Jawala Singh leading to R. S. A. No. 2120 of 1987 allowed by this Court vide judgment and decree dated 11.08.1988. Thus, the decree sought to be executed is nothing but a result C. R. No. 3888 of 1994 6 of fraud played by petitioner and respondents no. 2 and 3 on the Court as well as on respondent no. 1. For this added reason also, the decree is inexecutable against respondent no. 1, who is not party to the said decree and is owner of the suit land.
It is thus manifest that objections preferred by respondent no. 1 have been rightly allowed by the courts below. The impugned decree is not executable against respondent no. 1-objector. The instant revision petition is completely meritless. Impugned orders of the courts below do not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of limited revisional jurisdiction under Section 115 of the Code of Civil Procedure. Accordingly, the revision petition is dismissed.
July 09, 2013 ( L. N. MITTAL ) monika JUDGE