Punjab-Haryana High Court
Dilbagh Singh vs Umed Singh & Ors on 8 April, 2013
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.4097 of 2011(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.4097 of 2011(O&M)
Date of Decision:-April 8th, 2013
Dilbagh Singh.
......Appellant.
Versus
Umed Singh & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. O.P. Goyal, Senior Advocate with
Ms. Sheena Khanna, Advocate for the appellant.
***
JASWANT SINGH, J.
CM Nos.11861-C of 2011 has been filed under Section 5 of the Limitation Act seeking condonation of 170 days delay in refilling the RSA.
For the reasons stated in the application which is duly supported by affidavit of appellant itself, the same is allowed and delay of 170 days in refiling the present second appeal is hereby condoned. RSA No.4097 of 2011
Plaintiff no.3/appellant is in second appeal against the concurrent findings returned by both the courts below, whereby suit filed by the plaintiffs for declaration with a consequential relief of permanent injunction was dismissed by the learned Civil Judge(Jr.Divn.), Gurgaon vide judgment and decree dated 04.01.2010 and the findings thereof have been affirmed in appeal by learned Additional District Judge, Gurgaon vide its RSA No.4097 of 2011(O&M) #2# judgment and decree dated 12.10.2010.
In brief facts of the case are that the plaintiffs had filed the present case by alleging that defendants/respondents got some papers signed by them by way of fraud although the papers were thought to be signed for partition. However, later on they got to know that a judgment and decree dated 20.12.1982 was passed against them on the said basis. It is the said judgment and decree that has been challenged by the plaintiffs by filing the present suit and it was further stated by plaintiffs that they are still in possession of the property but the defendants are trying to interfere in their peaceful possession.
Upon notice, the suit was resisted by defendant nos.1 to 6 by filing a joint written statement, whereby it was stated that the challenge to the impugned judgment and decree dated 20.12.1982 is barred by limitation. Defendants also took the plea of perfecting their title over the suit property by way of adverse possession after passing the judgment and decree dated 20.12.1982. Possession of the plaintiff was denied and it was stated that it is the defendant nos.1 to 6 who are in possession of the property.
Defendant nos.7 filed separate written statement whereby the claim of the plaintiffs was admitted and prayer was made for decreeing the suit of the plaintiffs.
Replication was filed wherein the entire contents of the plaint were reiterated and those of the written statement were denied.
From the pleadings of the parties issues were framed. Both sides lead their evidence in support of their respective claims and after appreciating their evidence, learned trial Court dismissed the suit and the RSA No.4097 of 2011(O&M) #3# findings thereof were affirmed in appeal by learned Appellate Court. Hence the present second appeal.
I have heard learned Counsel for the appellant and have gone through the case file carefully with his able assistance.
Learned Counsel for the appellants has argued that both the courts below have not appreciated the various grounds that have been taken by the appellant whereby the impugned judgment and decree dated 20.12.1982 was challenged. It was argued that both the courts below failed to appreciate the fact that decree dated 20.12.1982 was not sustainable in the eyes of law for want of registration as property worth more than Rs.100/- was involved and thus, the impugned judgment and decree dated 20.12.1982 was liable to be registered compulsarily. It was also argued that Shish Pal and Rohtash(whose Lrs are defendant nos.1 to 6) in whose favour the said judgment and decree dated 20.12.1982 was passed were not in anyway related to Hoshiar Singh and rather they were strangers and thus there was no pre-existing right in their favour. Hence, in view of this also the judgment and decree requires registration. Finally, it was argued that the period of limitation of 03 years would start from the date of knowledge and in the present case limitation cannot come in the way for the reason that the present suit has been filed by the plaintiffs on the basis of title and hence there is no limitation for filing a suit on the basis of title. Thus, it was argued that the impugned judgment and decrees passed by both the courts below are liable to be set aside. In support of his contentions, learned Counsel for the appellant has placed reliance upon Bhoop Singh Vs. Ram Singh Major & Ors. AIR 1996 Supreme Court 196, Dilip Gupta & Anr.
RSA No.4097 of 2011(O&M) #4# Vs. Debashish Palit & Ors. 2006(1)RCR(Civil) 649, Bhim Singh & Ors. Vs. Zile Singh & Ors. 2006(3) RCR(Civil) 97 & Swarna Devi & Ors.Vs. Mahant Nath Ram Sharma 2005(2) Civil Court Cases 484 (P&H).
After hearing learned Counsel for the appellant and perusing the paper book, this Court is of the considered view that the present second appeal is devoid of any merit and the same deserves to be dismissed. Perusal of the paper book reveals that Hoshiar Singh (predecessor in interest of plaintiffs Smt. Kela & defendant nos.7 & 8) had purchased 1/5th share in the agricultural land vide sale deed Ex.PB dated 29.11.1963 from Maman@ Sardari son of Kansi and Sh. Ram Pat son of Nathu along with Mani Ram (who had also purchased 1/5th share) and at that time, Shish Pal(predecessor in interest of defendant nos.1 to 5) and Rohtash (defendant no.6) were co- sharers in the said Khewat to the extent of remaining 3/5th share and thus, said Shish Pal and Rohtash filed a civil suit for pre-emption qua the land which was purchased by Hoshiar Singh and other vendee and the said civil suit bearing no.164 of 1964 was decreed vide judgment dated 28.06.1972 and the first Appellate Court reversed the judgment of the trial Court vide its judgment and decree dated 10.08.1973(Ex.PC and Ex.PD) by holding that suit land was not pre-emptable by the co-sharers. Against the said judgment and decree dated 10.08.1973, Shish Pal filed an RSA No.1214 of 1973 which was dismissed on 23.11.1982(Ex.PE & Ex.PF) and during the pendency of the said RSA Hoshiar Singh had died and the plaintiffs (including appellant) along with defendant nos.7 & 8 and their sister Smt. Kela were made legal representative of Hoshiar Singh. Thereafter, it emerges from the record that after dismissal of the RSA on 23.11.1982, RSA No.4097 of 2011(O&M) #5# parties entered into a oral compromise and then a Civil Suit no.1227 of 17.12.1982 titled as Shish Pal Vs. Smt. Shanti & Ors. was filed regarding the suit land which is on record as Ex.D-1. In the said civil suit, defendants appeared and filed an admitted written statement after engaging a counsel Sh. Diwan Rajinder Lal Chopra which is evident from Ex.D-2. In the said civil suit, application under Order 32 Rule 2 Code of Civil Procedure read with section 151 Code of Civil Procedure was also filed wherein it was mentioned that defendant nos.5 & 7 namely Raghbir and Kamlesh(now defendant nos.7 & 8) as well as the plaintiffs were minors and fatherless and thus they were being represented through their mother being the next friend and guardian. A copy of the said application is also on record as Ex.DX. Thus it is evident that an application for permission to compromise the suit on behalf of the minors Raghbir and Kamlesh was filed in the said suit on 20.12.1982 which is also on record as Ex.D-3 and in the said civil suit, compromise dated 20.12.1982 (Ex.C-1) a certified copy of which is also on file as Ex.D-7 was entered into and statements of the parties were recorded which are on record as Ex.D-8 and Ex.D-8/1. Consequently, the learned Sub Judge, IInd Class decreed the suit in terms of said compromise Ex.C-1 vide his judgment and decree dated 20.12.1982 (Ex.D-9 and Ex.D-10 on record). Therefore, it is evident that the learned Sub Judge had granted the necessary permission to compromise the suit on behalf of the minors and keeping in view the interest of the minors, which was being safeguarded by their mother by way of a compromise 7 Biswas of land was reserved along with Rs.4000/- for the benefit of minor Raghbir and Kamlesh. It is also evident from the record that Raghbir and Kamlesh had accepted the RSA No.4097 of 2011(O&M) #6# judgment and decree dated 20.12.1982 in which 7 Biswas of land was reserved for them along with Rs.4000/- in the compromise which was effected by their mother, since these two minors had subsequently filed a civil suit no.520 of 1995 which was decided on 24.05.2000, whereby their suit for taking compensation of aforesaid 7 Biswas of land was decreed along with interest. This fact goes a long way to prove that both these minors are estopped by their own act and conduct as they have taken benefit from the said compromise.
Not only this, the impugned judgment and decree dated 20.12.1982 has been challenged on the ground of fraud, misrepresentaion as well as on the ground of minority of Raghbir and Kamlesh, however, as discussed above, no incident of any fraud has been pointed out to this Court that has been played upon Raghbir and Kamlesh. As far as the ground of minority is concerned, their mother had duly moved an application for entering into compromise on behalf of these two minors which was allowed by the trial Court and only then the judgment and decree dated 20.12.1982 was passed.
The ground of non registration of the judgment and decree dated 20.12.1982 is also without any merit and has to be rejected because the judgment and decree dated 20.12.1982 was passed in a declaratory suit in which pre-existing rights of the parties on the basis of oral compromise reduced subsequently in writing were got declared and no new rights were created so as to attract the provisions of Section 17 of the Registration Act. Hence the judgments that have been relied upon by the learned Counsel for the appellant namely Bhoop Singh's case(supra) & Dilip Gupta & Anr's RSA No.4097 of 2011(O&M) #7# case(supra) are not at all applicable to the facts and circumstances of the case in hand.
The final arguments of the learned Counsel for the appellant regarding the suit not being barred by limitation is concerned, the said argument is also without any merit for the reason that the judgment and decree dated 20.12.1982 has been challenged by filing the present civil suit on 17.04.1999 i.e. approximately after a gap of 17 years from the date of passing of the said decree. It is by now settled position of law that a suit for declaration to challenge a consent decree has to be filed within a period of 3 years from the date of decree and if it is filed beyond that, the suit has to be held to be barred by limitation. Although, there is no limiation of filing a suit on the basis of title, however, a party cannot circumvent the law by alleging the suit to be within limiation for challenging the judgment and decree passed 17 years earlier which was duly and validly passed and being in knowledge of the mother of appellant/plaintiff no.3 and aforesaid Raghbir and Kamlesh. Hence, the findings regarding the suit being barred by limitation are also upheld. As far as the plea of the judgment and decree dated 20.12.1982 being null and void on the basis that Civil Suit no.1227 of 17.12.1982 was filed with the pleading that Shishpal be declared as owner on basis of adverse possession is concerned, the same is wholly misconcieved as firstly the present suit by appellant/plaintiff no.3 being barred by limitation, and secondly it not being the pleaded case of the plaintiffs.
In view of the above, finding no question of law much less substantial question of law under Section 100 of Code of Civil Procedure RSA No.4097 of 2011(O&M) #8# arising for determination, the present second appeal is hereby dismissed.
( JASWANT SINGH ) JUDGE April 8th, 2013 Vinay