Punjab-Haryana High Court
Bhupinder Singh vs Charan Singh & Others on 25 January, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.3490 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3490 of 2009(O & M)
Date of decision: 25.01.2012
Bhupinder Singh ...Appellant
Versus
Charan Singh & others ...Respondents
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr.Pritam Saini, Advocate for the appellant,
Mr.S.S.Dinarpur, Advocate for the respondents.
*****
G.S.SANDHAWALIA J.
The present appeal has been filed by the unsuccessful plaintiff- appellant wherein the suit for declaration has been dismissed by both the Courts below.
The brief facts of the case are that the plaintiff-appellant claimed declaration that he was exclusive owner of the land measuring 70 kanals 5 marlas situated within the revenue estate of Village Chhappar Mansurpur Hadbast No.443 as per Jamabandi for the year 1991-92, Tehsil Jagadhri District Yamunanagar. It is alleged that the lease deed dated 29.11.1995 made in favour of defendant-respondent No.2 and the judgment and decree in favour of defendant-respondent Nos.1 to 4 passed by the Court of Civil Judge(Senior Division) Jagadhri in Civil Suit No.87-CS of 1996 decided on 03.02.1996 were null and void and a result of fraud and forgery played upon Late Asharfi Devi. The subsequent mutation No.1234 and 1264 sanctioned on the basis of lease deed and the judgment and decree were null and void and plaintiff-appellant was the exclusive owner of the land detailed in the head-note on the basis of a registered and valid will RSA No.3490 of 2009 2 dated 21.02.1994 executed by Late Asharfi Devi and accordingly, he was entitled for permanent injunction regarding the land in dispute. The plaint was based on the ground that Late Asharfi Devi was the sister of the mother of the plaintiff-appellant and that the mother of the plaintiff-appellant had died when he was only three years old and looked after him as a son as she was issueless. Thereafter, the plaintiff-appellant passed his matriculation examination and got a job in Delhi and he took Smt.Asharfi Devi to Delhi but he used to visit the Village Chhappar Mansurpur and looked after her land and she was recorded in actual and physical possession of the suit land in the revenue records also. The defendant-respondents were alleged to be distant relations of Smt.Asharfi Devi and had an evil eye on the property of Smt.Asharfi Devi and thus were always in search of some occasion to grab and extract the property of Asharfi Devi. It was alleged that in November, 1995, Jagbir Singh and Charan Singh(defendant-respondent No.1) sons of Nain Singh went to Delhi to see Asharfi Devi with a story that one uncle of her's was in serious condition and wanted to see her. Asharfi Devi was accordingly sent to the village with the said persons and the defendant- respondents, taking advantage of the old age of Smt.Asharfi Devi, get the lease deed dated 03.02.1996 in favour of defendant-respondent No.2, Mahipal Singh, son of Nain Singh without paying any consideration to her. The said lease deed was thus a result of fraud and forgery and liable to be set aside. It was contended that Asharfi Devi was kept by the defendant- respondents and not allowed to be seen and the plaintiff-appellant was threatened with dire consequences and a DDR in this regard was also lodged. Accordingly, it was pleaded that the defendant-respondents had a collusive decree in their favour on 03.02.1996 and the said lease deed and RSA No.3490 of 2009 3 the judgment and decree are a result of fraud as Asharfi Devi was 80 years of age and not aware of rights and wrongs. It was also contended that in Civil Suit No.87/CS of 196, a family settlement had been set up and there was no relationship of joint Hindu family between the defendant- respondents and Late Asharfi Devi and defendant-respondents had no pre- existing rights between the parties and that she had executed registered will dated 21.02.1994 in favour of the plaintiff-appellant, and therefore, he was the owner of the said properties left by Late Asharfi Devi. It was alleged that defendant-respondents had also taken possession of the house of Asharfi Devi and were in illegal and unauthorized possession of the residential house and the plaintiff-appellant requested many times to admit his claim and on the denial of the same, the suit had been filed.
The defendant-respondents filed written statement and denied that the plaintiff-appellant was the nephew of Asharfi Devi and the pedigree table given by the plaintiff-appellant was wrong. It was also denied that the plaintiff-appellant was brought up by Asharfi Devi and there has been long standing litigation between the plaintiff-appellant and Asharfi Devi. In fact, Asharfi Devi was living in village Chhappar Mansurpur and got her land cultivated through chakotedars and the plaintiff-appellant had himself admitted that defendant-respondents, Charan Singh and Mahipal Singh were the sons of Asharfi Devi in Civil Suit No.702 of 20.10.1977 titled as Bhupinder Singh Vs. Smt.Asharfi Devi in para No.10 of the plaint and now he was estopped by his own act and conduct. It was alleged that the plaintiff-appellant had got the signatures of Smt.Asharfi Devi on some blank papers for which registered notice dated 05.11.1995 was given to the plaintiff-appellant by Smt.Asharfi Devi asking for the return of the blank RSA No.3490 of 2009 4 papers and it is alleged that the plaintiff-appellant might have prepared and forged some documents on the basis of the thumb impression of Asharfi Devi which were got by fraud and mis-representation. The execution of the lease deed was also denied to have been executed by undue influence and it was pleaded that she used to get her land cultivated through Charan Singh, defendant-respondent and this fact also stood recorded in the revenue records. A civil suit No.702 dated 20.10.1977 filed by the plaintiff- appellant was dismissed by the Court on 24.10.1979 and the plaintiff- appellant gave a false application to harass her when she was sick and DDR No.20 dated 23.06.1996 was also recorded to that effect in Police Station Chhappar Mansurpur. The decree in favour of the defendant-respondents was legal and genuine and the lease deed and decree were two separate documents in favour of two different persons and could not be challenged by way of filing one single suit. Merely because Asharfi Devi was 80 years of age was not a bar for her to execute the lease deed and once the will was being set up on 21.02.1994, therefore, it could not be contended by the plaintiff-appellant that the lease deed of 21.02.1995 was by an incompetent person. The will was forged and fabricated document and could not be acted upon. Family settlement could always be with remote relations whereas defendant-respondents were in close relation with Asharfi Devi and on the date of the decree, the defendant-respondents were having pre- existing rights and Asharfi Devi herself had no objection against the defendant-respondents and the defendant-respondents were thus in lawful possession of the suit land. The trial Court on this basis, framed the following issues:
1. Whether plaintiff is exclusive owner of the disputed land on the basis of will dated 21.02.1994? OPP RSA No.3490 of 2009 5
2. Whether lease deed dated 29.11.1995 in favour of deft.No.2 is illegal, null and void? OPP
3. Whether decree dated 3.8.1996 in favour of defendants No.1 to 4 is null and void on the ground mentioned in para No.6 of the plaint? OPD
4. Whether the suit is bad for mis-joinder of cause of action? OPD
5. Whether plaintiff is estopped from filing the present suit by his own act and conduct? OPD
6. Whether suit is barred by the principle of res-judicata? OPD
7. Relief.
The plaintiff-appellant examined himself and one Sandeep Jain whereas the defendant-respondents examined three witnesses and placed on record various documents. The trial Court noticed that the will had not been proved by the plaintiff-appellant and he never pressed his claim on the basis of the will and there was no specific pleadings regarding natural succession and even if there was a relationship between the parties and there was an admission regarding the same, it could not be held that the plaintiff- appellant was the owner of the disputed land. Since, in the absence of any specific pleadings, no relief could be granted and the evidence beyond the pleadings could not be taken into consideration. The finding on the lease deed was that since lease period had expired, therefore, the issue had become redundant. Regarding the issue of family settlement, it was held that Asharfi Devi in her written statement had herself admitted and given a statement on oath that there was a family settlement on the basis of which the decree was passed and the plaintiff-appellant could not be allowed to say that the decree was illegal for want of registration since it was for declaration of the existing rights which had already been agreed by the family settlement. The relationship of the parties was also noticed and it RSA No.3490 of 2009 6 was noticed that Asharfi Devi and the mother of the plaintiff-appellant, Kamala Devi were cousin sisters being born to two brothers, Baljeet Singh and Tikka Singh and Asharfi Devi was daughter of Baljeet Singh, and therefore, the relationship between the parties and the defendant- respondents were not strangers to Asharfi Devi. Accordingly, reliance was placed upon Kale & others Vs. Deputy Director of Consolidation & others AIR 1976 SC 807 and issue No.3 was decided in favour of the defendant- respondents and against the plaintiff-appellant. Issues No.4 to 6 were not pressed by the defendant-respondents and were decided against them and accordingly the suit was dismissed. Thereafter, an appeal was filed before the lower appellate Court which met the same fate on 20.04.2009.
The contention of the counsel for the plaintiff-appellant was that the family settlement arrived at between Asharfi Devi and the defendant-respondents which was the basis of the decree dated 03.02.1996 was not registered, and therefore, the decree created rights in the hands of the defendant-respondents for the first time, and therefore, on the said basis and in the absence of registration, the decree was liable to be set aside. It was also contended that the family settlement could be within relatives, and therefore, the said settlement could not have been taken into consideration. The lower appellate Court has discussed this issue in detail and noticed the relationship between the parties. It has also relied upon the judgments of the Hon'ble Suprme Court in Krishna Biharilal Vs. Gulab Chand & others AIR 1971 SC 1041 and held that since the defendant-respondents are the sons of Kamala Devi who was cousin sister of Asharfi Devi, the family settlement amongst relations is not to be considered in a narrow sense of a group of persons who have a right of succession. In the present case, the RSA No.3490 of 2009 7 judgment and decree was passed with the consent of Asharfi Devi on 03.02.1996. Asharfi Devi died on 20.11.1996, i.e., nine months after the said decree had been passed. She made no effort to challenge the same and was satisfied with the decree which was passed in favour of the defendant- respondents. Reliance can be placed on the judgment of this Court in the case of Raj Kali Vs. Jitender & others_2010 (2) PLR 258 in which it has been held that the Courts have leaned in favour of up-holding the family arrangement instead of disturbing the same on trivial or technical grounds. In fact, she was wanting that the property, during her lifetime, should go to the defendant-respondents as she was staying in the village and rather she had filed a suit against the plaintiff-appellant, Bhupinder Singh in 1979 and obtained a decree in her favour on 20.10.1979 and thus, the relationship between the parties were not good. Hon'ble Supreme Court in the case of Bhoop Singh Vs. Ram Singh Major & others AIR 1996 SC 196 has held that a compromise decree, if bona fide and is not a device to obviate payment of stamp duty, does not require registration. In fact, since Bhupinder Singh has challenged the said decree passed in favour of Asharfi Devi and in view of the strained relationship between the parties, the question of executing a will in favour of Bhupinder Singh did not arise though he had set up registered will dated 21.02.1994 which, in fact, was not pressed into action before the trial Court as the plaintiff-appellant was well aware that he would not be able to prove the said execution. All these factors only go on to show that it was an attempt to grab the property of Asharfi Devi by the plaintiff-appellant. The revenue records for the year 1996-97 showed that the defendant-respondents were in cultivating possession and chakotedars and even prior to that, in 1986-87(Exhibit D10) RSA No.3490 of 2009 8 and 1981-82(Exhibit D11), the Jamabandi showed that the defendant- respondents were in cultivating possession under Asharfi Devi, and therefore, were cultivating her land and thus, she had also executed the lease deed in their favour. Admittedly, Asharfi Devi was the absolute owner of the suit land and she had absolute right to alienate the property in the manner she wanted to and the plaintiff-appellant set up a case that she had treated him as a son and he had taken her to Delhi but has not been able to prove these facts that Asharfi Devi ever lived with him since no ration card or voter list has been placed on record to show that Asharfi Devi was a resident of Delhi. In fact, it was the specific case of the plaintiff-appellant that Asharfi Devi was taken to Delhi but this fact was not substantiated by any proof, and in view of the fact that Asharfi Devi had not lived at Delhi, and therefore, the plaintiff-appellant had no right to claim inheritance to the property of Asharfi Devi.
Even the trial Court has noticed that in the absence of the pleadings regarding succession, no benefit can be given and even otherwise, the will had been set up but the same had not been put into action. A submission was made that there was no mention in the suit filed for permanent injunction on 29.07.1996 by Asharfi Devi against the plaintiff- appellant of any decree, and therefore, the decree was a fraud since Asharfi Devi herself did not admit the family agreement. The said submission is without any basis since the relationship between Asharfi Devi and Bhupinder Singh were strained. Therefore, in a simpliciter suit for permanent injunction, it was not necessary for her to bring these facts on record and to the notice of that person who she was aware was wanting to grab her property. The plaintiff-appellant had specifically pleaded fraud RSA No.3490 of 2009 9 regarding the decree but the details of the fraud which were required to be proved have not been specified as per the provisions of Order 6 Rule 4 of the Code of Civil Procedure, and therefore, in the absence of such proof, the Courts below were justified in dismissing his suit. Both the Courts have concurrently came to the conclusion that the relationship between defendant-respondents and Asharfi Devi was established and they were also residents of the village and cultivating her land, and thereafter, during her lifetime, she suffered a compromise deed in their favour on the basis of a family settlement.
Keeping in view all these factors in mind and the fact that there is no perversity or any illegality in the orders of the Courts below and in the absence of any substantial question of law arising, the present regular second appeal is dismissed and the judgments and decrees of Courts below are up-held.
(G.S.SANDHAWALIA) JUDGE 25.01.2012 sailesh