Punjab-Haryana High Court
Mehar Singh And Anr. vs Faqir Chand And Ors. on 18 April, 1996
Equivalent citations: (1996)114PLR114
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Plaintiffs Mehar Singh and Rattan Lal remained unsuccessful both in the trial Court and in the First Appellate Court, have filed the present regular second appeal and it has been directed against the judgment and decree dated 29.8.1991 passed by Additional District Judge, Ambala who affirmed the judgment and decree dated 28.9.1987 passed by Sub Judge II Class, Jagadhri by which the suit of the plaintiffs for declaration was dismissed.
2. Brief facts of the case are that plaintiffs Mehar Singh and Rattan Lal are the real brothers of Faqir-defendant No.1. They are the sons of Chhajju Ram-deceased who was impleaded as defendant No.2 in the trial Court. The land measuring 23 Kanals 2-1/3 marlas detailed in the head note of the plaint was allegedly the ancestral property in the hands of defendant No.2 vis-a-vis plaintiffs and defendant No.1. The plaintiffs alleged that they are Saini by caste which is predominantly agricultural tribe of Haryana. According to the custom prevalent in that caste, no person can dispose of the ancestral property except for consideration and legal necessity. Defendant No.2 was spent thrift person. He started wasting the property. The wife of defendant No. 2 and the present plaintiffs earlier filed suit No. 247 of 1974 against defendant No. 2 for permanent injunction restraining him from wasting and alienating the property standing in his name. In that suit, the defendant No.2 Chhajju Ram deceased gave an undertaking that he would not alienate any part of the suit property in-any-manner and inspite of that collusively and secretly suffered a decree in respect of the suit land in favour of defendant No.1 on 8.5.1994 alleging that the suit property fell to the share of defendant No.1 in a family settlement. The plaintiffs alleged in the present suit that the said decree dated 8.5.1994 in favour of defendant No.1 is void and ineffective. No such family arrangement was permissible because the parties are governed by customary law. Defendant No.2 could not suffer a decree without impleading the plaintiff is as a party to the suit. The decree dated 8.5.1984 is actually a transfer of the land by defendant No.2 in favour of defendant No.1 and this mode of transfer is not recognised by the Transfer of Property Act. The said decree has been suffered by defendant No.2 in breach of the undertaking given by him.
3. Notice of the suit was given to the defendants. Defendant No.1 filed a separate written statement and pleaded that the suit property was self acquired property of defendant No.2 and the same fell to his share in a family settlement. The said defendant No.2 was living alone with defendant No.1. Later has been serving his father. The plaintiffs used to reside with their mother from defendant No.2 for the last about 20 years. The plaintiffs and the mother were not the members of the Joint Hindu Family and in these circumstances, the joining of them in the family settlement does not arise. According to the defendants, they are Saini by caste but were not governed by custom. Since the property in the hands of Chhajju Ram was self acquired property, so the plaintiffs have no right, title or interest in the property in dispute. In the earlier decree obtained by the plaintiffs jointly with their mother Rali in a suit for permanent injunction, it was pleaded that the said decree was obtained fraudulently and at any rate the said decree does not stand in the way of defendant No.1 as the land was not ancestral in the hands of defendant No.2.
Defendant No.1 also took pleas that the suit was not maintainable in the present form; that the plaintiffs had no locus standi to file the suit; and that the jurisdiction of the Civil Court to try the suit was also challenged.
4. Defendant No.2 also filed a separate written statement and took the similar plea as that of defendant No.1.
5. Plaintiffs filed separate replications to the written statement in which they reiterated their applications made in the plaint by denying those of the written statement and from the above pleadings of the parties the learned trial Court framed the following issues:-
1. Whether the decree dated 8.5.1984 in case titled Faquir Chand v. Chhajju Ram, in suit No. 38 of 24.1.1984 is null and void and is not binding on the plaintiff and is liable to be set-aside as alleged in the plaint? OPP
2. Whether the defendant No.2 was admitted to bad habits as alleged in para No.3 of the plaint if so, to what effect ? OPP
3. Whether the plaintiffs are living separately from the defendant for the last more than 20 years and have got no right title or interest in the property in dispute? OPD.
4. Whether the defendant constituted Joint Hindu Family and are governed by Hindu Law, if so to what effect ? OPD.
5. Whether the suit is not maintainable in the present form ? OPD.
6. Whether the plaintiffs have no locus standi to file the present suit ? OPD.
7. Whether the plaintiffs are estopped from filing the present suit ? OPD.
8. Whether the civil court has got no jurisdiction to try and entertain the suit as alleged? OPD.
9. Whether the defendants are entitled for special costs? OPD.
10. Relief ?
6. It may be mentioned here that during the pendency of the first appeal, Chhajju Ram, defendant No.2 expired. Thereafter, daughter of Chhajju Ram was also brought on record as his legal representative besides the plaintiffs and defendant No.1
7. The parties led oral and documentary evidence in support of their case and on the conclusion of the trial Court issue No.1 was decided against the plaintiff and the decree dated 8.5.1984 passed in Civil Suit No. 38 titled Faqir Chand v. Chajju Ram was held not to be void. Resultantly, this issue was decided against the plaintiffs and in favour of the defendants.
8. Under issue No.2 it was held that defendant No.2 was not a man of vices. This issue was also decided against the plaintiffs. Issue No.3 was decided in favour of the defendants Issue No. 4 was also held in favour of the defendants holding that the parties are governed by Hindu Law. Issues 5 and 6 were decided against the plaintiffs. No specific finding was given on issue No. 7 by the trial Court inadvertently. Otherwise also, it is proved on record that the plaintiffs were not estopped from filing the suit. Issues 8 and 9 were decided against the defendants and finally on the basis of the finding given under issues 1 to 6, the plaintiffs were not evicted.
9. Aggrieved by judgment and decree dated 28.9.1987, passed by the trial Court the unsuccessful plaintiffs have filed the civil appeal and the Appellate Court also affirmed the findings of the trial Court and dismissed the appeal and in this manner the present regular second appeal.
10. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case.
11. Assailing the findings of the trial Court as well as the First Appellate Court, it was submitted by learned counsel for the appellants that both the Courts have not appreciated the evidence in a right manner. Rather, both the Courts committed grave error in assessing the evidence led by the plaintiffs to prove that the property in the hands of Chhajju Ram was ancestral. Apart from the oral evidence, there was a clinching documentary evidence which would show that the property in dispute was ancestral and Shri Chhajju Ram was not competent to have a consent decree dated 8.5.1984 with respect to the property mentioned in Civil Suit No. 38. On the contrary, it was submitted that the property in the hands of Chhajju Ram was not ancestral property and he could dispose of the same in-any-manner he likes and that the decree dated 8.5.1984 was perfectly valid and confers a valid title on defendant No.1. After hearing the rival contentions of the parties. I am of the considered view that both the Courts below have not considered the evidence led by the plaintiff on issue No.1 in a right manner, as a result of which miscarriage of justice has been done to the plaintiffs. No doubt, the concurrent finding of fact should not be disturbed by this Court in Regular Second Appeal but once this Court finds and feels that the evidence has not been appreciated and discussed in a correct manner and a wrong conclusion has been drawn, this Court will definitely make a fresh appraisal of the evidence led by the parties. From the record of the lower Court, it appears that there was a trial of litigation in the family. Earlier to the present suit/the litigation took place between father and son.
12. In the year 1974, Smt. Rali, Mehar Singh and Rattan Lal present appellants filed a suit for permanent injunction against defendant No.2 Chhajju Ram praying that Chhajju Ram be restrained from wasting and alienating the property as mentioned in the head note. That suit No. 247 was instituted on 27.8.1974. The compromise dated 21.12.1974, copy of which is Ex.Pl was produced. It is signed by Smt. Rali, thumb marked by Mehar Singh and also signed by Chhajju Ram deceased defendant No.2. This document is very relevant for the purpose of the decision of this appeal. A request has been made by the parties to the suit to the Court that the parties had compromised and it has been agreed upon by defendant No. 2 that the land in suit was ancestral property and that he would not sell, mortgage or transfer by will in-any-manner. The land would remain in the name of defendant No.2 and he would be permitted either to cultivate the land himself or get it cultivated from a third person. The said suit may be disposed of in the light of the statement and compromise. It may also be mentioned here that the subject matter of the suit was the same land which is now the subject matter of the present appeal. There is a binding admission on the part of Chhajju Ram that the property in his hand was ancestral. Defendant No.1 by virtue of the impugned decree dated 8.5.1984 is claiming in a representative capacity to the estate allegedly belonging to Shri Chhajju Ram. The admission of Chhajju Ram is binding upon the contesting defendant Shri Faqir Chand and he could not get out of it. It has been held in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., AIR 1960 SC 100 that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the mater, unless successfully withdrawn or proved erroneous.
13. According to Section 18 of the Indian Evidence Act, 1872, statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. Sub clause 2 of Section 18 further lays down that persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statement. Any admission made by Chhajju Ram in Civil Suit No. 247 of 1974 is binding upon defendant No.1 Faqir Chand. Onus of Issue No.1, of course, was on the plaintiff to the effect that Chhajju Ram could not suffer a decree and that the property was ancestral or that as per custom also, Chhajju Ram was not entitled to transfer the property. Both the Courts below had non-suited the plaintiffs on the ground that the plaintiffs had not led any evidence in the shape of revenue record to prove the ancestral nature of the property and, therefore, the property in the hands of defendant No.2 was non ancestral. In this regard I would like to reproduce relevant portion of para 10 of the judgment of the First Appellate Court where it was stated as follows:-
"Not a single document was brought on the file to show that the suit land was inherited by Chhajju Ram defendant No.2 after the death of his father. Even copy of jamabandi was not produced by the plaintiffs to show that the suit land at one time was held by their grand-father. So the oral evidence of the plaintiffs which has been orally rebutted by the defendants cannot be held sufficient to prove that the suit land in the hands of defendant No.2 was ancestral property."
The document Ex.P-1 has not read in extension and in the right perspective as high-lighted above as it contains a specific admission on the part of Chhajju Ram which is also binding upon Shri Faqir Chand. Also there is an oral evidence to this effect to prove the ancestral nature of the property. Mehar Singh PW1 categorically stated in his examination-in-chief that property in dispute was ancestral of Shri Chhajju Ram and he was not competent to alienate the same. He proved document Ex.Pl after seeing in the summoned file of the suit. In the cross-examination he stated that the land in question was earlier in the hands of his grand father. Sardara Ram PW2 also proved the compromise Ex.Pl being its signatory. Mani Ram PW3 also stated that the land was ancestral. In the cross-examination also the factum of the ancestral nature has come.
14. Learned counsel appearing on behalf of respondents submits that the admission of Chhajju Ram should not be accepted because that was made in relation to a property which is not the subject matter of the present suit. The argument is devoid of merit. I have made a comprehensive study of the details of suit No.247 of 1974 and the present suit. The property in dispute is the same which was the subject matter of the suit which was instituted in the year 1974.
15. Second litigation started in the year 1978 when suit No. 560 of 1978 was instituted by Chhajju Ram against sons Mehar Singh and Rattan Lal. This was a suit for permanent injunction and, therefore, Chhajju Ram prayed that defendants be restrained from interfering in his possession with respect to the land measuring 64 Kanal-9 Marias which includes the land of the present suit. Again the compromise took place and it was agreed upon defendants would not interfere in the possession of the plaintiffs and that plaintiffs would continue to be owner and in possession of the same and that the defendant would not have any concern in the land in dispute. (Parativadi Ka Zameen Mutnajia Me Koe Matlab va Vasta Na Rahaga).
16. Learned counsel for the respondents wanted to take the help of this compromise Ex.D3 by submitting that it was admitted by the present appellants that the land would remain in the ownership of Shri Chhajju Ram who would remain also in possession and the defendants would not claim any right, title or interest therein. Resultantly, the property of Chhajju Ram became his personal property and he could alienate the same. This suit was decreed in terms of the document Ex.D2 which was executed on 17.10.1978.
17. I have gone through the compromise Ex.D-3. Interpretation sought to be given to this document by the respondents is not correct. I again cannot loose sight of the fact that after compromise Ex.Pl in the revenue record, the property stood in the name of Shri Chhajju Ram and in that context the appellant made a statement that Shri Chhajju Ram would remain its owner and in possession. What they wanted to convey was that they would not interfere in the possession of Shri Chhajju Ram. At no point of time, the defendants stated that the nature of the property has changed and it no longer remains as ancestral property. The defendants have not placed the copy of the plaint of this suit No. 560 of 1978 to show that Shri Chhajju Ram claimed it to be his self acquired property. Also there is no reference in this statement that the earlier compromise statement Ex.Pl would not be effective or binding. The third litigation which started when Shri Faqir Chand filed a suit for declaration that he was owner in possession of the land measuring 23 Kanal-2-1/3 Maria against his father Chhajju Ram. This was civil suit No. 38 of 1984 and was decided on 8.5.1984. This very decree has now been challenged on the ground that Shri Chhajju Ram was not competent to suffer the consent decree. If the property in the hands of Chhajju Ram was ancestral and that he was not entitled to alienate the same against the interest of the plaintiffs, definitely it would not convey any valid title or interest in favour of Shri Faqir Chand. In this regard, I have to see the stand of the defendants also that Shri Faqir Chand defendant No.1, who appeared as DW4 stated that the disputed land was purchased by Chhajju Ram from Bhagwant Singh, but not an iota of documentary evidence has been produced to establish that Chhajju Ram had purchased this property. No sales deed has been produced. Rather the Stand of Faqir Chand is contradictory to his written statement, where it was not pleaded that Chhajju Ram had purchased the property from Shri Bhagwant Singh and that in this manner it was a self-acquired property. The case of defendant No.1 Chhajju Ram himself is that he is governed by Hindu custom and according to it after the death of the owner, his children become the owners of the property. No-doubt, Chhajju Ram also states that suit land was purchased from Mohan Singh, Darshan Singh and Bhagwant Singh. No sale deed has been produced to this effect. Counsel for the respondents submitted that the best documentary evidence was that the revenue entry in the shape of excerpt in order to prove the ancestral nature of the property and, therefore, the findings of the Courts below should not be disturbed as the onus is on the plaintiffs to establish the ancestral nature of the property. The argument is partly correct that every party is supposed to lead best evidence but in the present case, the plaintiffs have been able to prove on record by producing Ex.Pl which contains admission to Chhajju Ram itself. It has not been proved to be erroneous nor Chhajju Ram has been able to withdraw its admission in a successful manner. Mehar Singh while appearing as PW-1 proved the document Ex.P1. Not an iota of suggestion was put to him that compromise Ex.P1 was procured by fraud etc or by exercise of undue influence upon Shri Chhajju Ram. The defendants 1 and 2 themselves admitted that they were governed by Hindu Law. No family settlement had been proved to show that it ever fell in the share of Shri Chhajju Ram or that some land was also given to the plaintiffs at the time of alleged statement. No particulars of the alleged family settlement have been pleaded.
18. In the light of the above discussion, I am inclined to set-aside the judgment and decree of both the Courts' below as null and void and further pass a decree of declaration that decree, dated 8.5.1984, passed in Civil Suit No. 38 of 1984 titled Faqir Chand v. Chhajju Ram' is violative of the decree passed in Civil Suit No.247 of 1974 titled as Smt. Rali and Ors. v. Chhajju Ram' and is ineffective against reversionary rights of the plaintiffs in respect of the suit land as mentioned in the plaint, as per jamabandi of 1980-81, situated in village Sabhilpur, Tehsil Jagadhri. The suit of the plaintiffs appellants is hereby decreed as prayed for, leaving the parties to bear their own costs.