Punjab-Haryana High Court
(O&M;) Ajaib Singh And Ors vs Kirpal Kaur And Ors on 28 October, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 2186 of 1987 ( O&M )
DATE OF DECISION : 28.10.2014
Ajaib Singh (deceased) represented by LRs and others
.... APPELLANTS
Versus
Kirpal Kaur and others
.... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present : Mr. H.S. Gill, Senior Advocate, with
Mr. R.K. Dhiman, Advocate,
for the appellants.
Mr. Sukhdip Singh Brar, Advocate,
for respondent No.1.
Mr. Surinder Garg, Advocate,
for respondents No.5 to 8.
***
SATISH KUMAR MITTAL, J.
1. This Regular Second Appeal has been filed by defendants No.2, 3, 4 and 4-A, namely Ajaib Singh, Mukhtiar Singh, Gurdeep Singh and Dalip Kaur wife of Gurdeep Singh, who are sons and daughter-in-law of defendant No.1 Bachittar Singh (proforma respondent No.2 herein) against the judgment and decree dated 24.04.1987 passed by the first appellate court, whereby while allowing the appeal filed by plaintiff Kirpal Kaur DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -2- (respondent No.1 herein) and dismissing the cross objections filed by the appellants herein, the judgment and decree of the trial court was set aside and the suit for declaration filed by the plaintiff was decreed to the effect that she is entitled to get 14 Kanals of land from the joint holding at the time of partition of the joint khata.
2. The brief facts of the case are that vide registered sale deed dated 30.07.1975 (Ex.P1), plaintiff Kirpal Kaur purchased 14 kanals of land comprised in khasra numbers 771/2 (2-12) and 773 (11-8) out of total land measuring 192 kanals 15 marlas from Bachittar Singh, for a consideration of ` 9,000/-. In the total land, Bachittar Singh was co-sharer to the extent of 1/3rd share along with defendants No.5 and 6, namely Sajjan Singh and Gajjan Singh (respondents No.3 and 4 herein). The plaintiff was put in possession of the aforesaid land and a specific averment was made in the sale deed to that effect. Subsequently, the plaintiff came to know that earlier to the aforesaid sale in her favour, vide sale deed dated 10.06.1975, Bachittar Singh had sold 1/6th share out of the total holding of 192 kanals 15 marlas, in favour of defendants No. 7, 8, 9 and 10, namely Major Singh, Kaka Singh, Ujagar Singh and Gurdev Singh, respectively (respondents No.5, 6, 7 and 8 herein). When Bachittar Singh refused to get the sale deed registered, on the intervention of the Registrar, the said sale deed was registered on 03.05.1976. Thereafter, the plaintiff filed a suit against Bachittar Singh restraining him from selling the aforesaid 14 kanals of land DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -3- bearing khasra numbers 771/2 (2-12) and 773 (11-8), which was already sold to her. However, in the said suit, the sale deed in favour of Major Singh etc. was upheld. Thereafter, defendant No.1 Bachittar Singh transferred his remaining share in favour of his sons and daughter-in-law, who are appellants herein, by suffering collusive decrees dated 15.03.1977 and 02.03.1977. In the instant suit, it was also pleaded by the plaintiff that the alleged collusive decrees suffered by Bachittar Singh in favour of his sons and daughter-in-law are null and void and not binding on the rights of the plaintiff.
3. The appellants contested the said suit. It was pleaded that the sale of land by specific khasra numbers by co-sharer Bachittar Singh out of the joint khata in favour of the plaintiff, particularly when possession of the said land was not delivered, is null and void. It was further pleaded that the appellants along with their father and father-in-law Bachittar Singh constituted a joint Hindu family and Bachittar Singh being karta of the family was not entitled to sell the joint hindu family property without any legal necessity. Therefore, the sale deed in favour of the plaintiff is illegal and void. They also defended the collusive decrees suffered by Bachittar Singh in their favour.
4. Defendants No.7 to 10 contested the suit to the extent that they had validly purchased 1/6th share of the joint land from Bachittar Singh vide registered sale deed and they are in possession of the same. They pleaded DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -4- that the plaintiff is not entitled to take possession of the said portion of the land from them.
5. On the pleadings of the parties, the following issues were framed :-
(1) Whether Bachittar Singh sold 14 kanals of land out of suit land with the plaintiff vide sale deed dated 30.7.75? (2) Whether Bachittar Singh and his son defendant constitute J.U.F and the suit land was joint Hindu family property ? OPD 2 & 3 (2A) Whether challenging of alienation dated 30.7.75 by defendants No.2 and 3 amounts to counter claim ? (2B) If issue No.2A is proved in affirmative, whether defendants are to pay advelorum court fee on the counter claim ? OPP (3) If this issue is proved, whether the sale deed dated 30.7.75 executed by Bachittar Singh in favour of plaintiff is null and void and not binding on defendants No.2 and 3 ? OPD 2 & 3 (3A) Whether the sale is void? If so its effect?
(4) Whether the decree suffered by Bachittar Singh defendant in favour of defendants No.2 & 3 is collusive ? (5) Whether the said decree is binding on the plaintiff? OPD (6) Whether the plaintiff is in possession of khasra No. 771?
If so, its effect ? OPP (7) Whether the plaintiff is entitled to declaration prayed for? OPP (7A) Whether the suit is within limitation ? OPP
6. The trial court, after considering the evidence led by both the DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -5- parties, recorded the following findings.
7. On issue No.1, it was held that Bachittar Singh sold 14 kanals of land out of khasra numbers 771 min (2-12) and 773 (11-8) for consideration, vide registered sale deed dated 30.07.1975 (Ex.P1) in favour of the plaintiff. On issue No.2, it was held that the defendants have miserably failed to lead evidence on record to show that the suit land is joint Hindu family property. On issues No.3 and 3-A, it was held that the sale deed Ex.P1 executed by Bachittar Singh in favour of the plaintiff is not null and void, rather it is valid, as it has not been effected by Bachittar Singh in respect of Hindu undivided family property. On issues No.4 and 5, it was held that the decree suffered by Bachittar Singh in favour of his sons was collusive and not binding on the rights of the plaintiff, as she was not party to the said decree. On issue No.6, the plaintiff was held to be not in possession of the purchased land comprised in khasra number 771, as in the Khasra Girdawari (Ex.D1), the said land was shown to be in possession of Sajjan Singh co-sharer. On issue No.7, it was held that since the plaintiff was not in possession of the land, she was not entitled to file simple suit for declaration and the consequential relief of partition claimed by the plaintiff is barred under the provisions of the Punjab Land Revenue Act. The issue of limitation (issue No.7-A) was decided in favour of the plaintiff. Issues No.2- A and 2-B were not pressed.
8. After recording the aforesaid findings, particularly keeping in DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -6- view the findings on issue No.7, the trial court vide judgment and decree dated 21.03.1985, dismissed the suit.
9. On appeal filed by the plaintiff and the cross-objections filed by the appellants herein, challenging the aforesaid judgment and decree, the first appellate court set aside the judgment and decree of the trial court and decreed the suit of the plaintiff, as indicated in the first paragraph of this judgment.
10. The first appellate court, while relying upon the principle laid down by the Full Bench of this Court in Bhartu vs. Ram Sarup, 1981 PLJ 204, held that the sale deed (Ex.P1) transferring land in favour of the plaintiff to the extent of 14 kanals of land out of the total joint holding, which was within the share of Bachittar Singh, was perfectly valid in the eyes of law. Thus, findings of the trial court on issue No.3-A were affirmed. It was further held that possession of one co-sharer in the joint property, in the eyes of law, is possession of all the co-sharers. Thus, the plaintiff shall be deemed to be in constructive possession of the joint holding and she is entitled to get 14 kanals of land at the time of partition. It was, therefore, held that even if the plaintiff was not in established exclusive possession of the land purchased by her, she is fully entitled to get possession of her share by getting the land partitioned. It was held that from any angle, it cannot be said that suit of the plaintiff for declaration is not maintainable. It was further held that the provisions of the Land Revenue Act will not oust the DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -7- jurisdiction of the civil court to decide the question of title and the trial court was not correct in observing that the provisions of the Land Revenue Act barred the consequential relief for partition. In the suit, the plaintiff has sought declaration that she is entitled to get the land partitioned and take possession of 14 kanals of land from the joint holding and she has not sought partition of the land itself. The provisions of the Land Revenue Act, thus, do not bar the present suit. During the course of arguments, the appellants did not challenge any other finding, except the findings on issue No.3, i.e. sale of specific khasra numbers by Bachittar Singh in favour of the plaintiff is illegal and void, and on that issue, the first appellate court while relying upon the Full Bench decision of this Court in Bhartu's case (supra), reversed the findings of the trial court on issue No.7, and decreed the suit.
11. Against the said judgment and decree of the first appellate court, the instant Regular Second Appeal has been filed.
12. Initially, when the instant appeal was filed, no substantial question of law was formulated. However, subsequently, by moving CM No. 1301-C of 2010, the appellant placed on record the following substantial questions of law :-
(i) Whether a consent decree is as good as obtained after contest and binds all the concerned until it is set aside ?DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -8-
(ii) Whether jurisdiction of the Civil Court regarding claim of respondent/plaintiff for partition of land was barred, in view of Section 158 (XVII) of Punjab Land Revenue Act?
(iii) Whether suit for declaration was maintainable when respondent was held to be not in possession of the suit land ?
(iv) Whether there was mis-reading of evidence and mis-
interpretation of documents ?
13. I have heard learned counsel for the parties on the aforesaid questions and have gone through the judgments of both the courts below and perused the record of the case.
14. As far as question No.(i) with regard to the consent decree is concerned, the same does not arise at all. Though the appellants filed cross objections before the first appellate court against the findings recorded by the trial court on issues No.2, 3, 3-A, 4, 5 and 7-A, but during the course of arguments, they only challenged the findings recorded by the trial court on issue No.3 with regard to validity of the sale deed (Ex.P1) executed by Bachittar Singh in favour of the plaintiff. The findings recorded by the trial court on other issues were not challenged. Even otherwise, the collusive decree suffered by Bachittar Singh in favour of his sons and daughter-in- law, after execution of the registered sale deed, has rightly been held to be not binding on the plaintiff, because she was not party to the said collusive decree. It appears that in order to defeat the legal right of the plaintiff in the DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -9- land purchased by her for consideration, Bachittar Singh suffered consent decree in favour of his sons and daughter-in-law (appellants herein).
15. In the facts and circumstances of the case, the substantial questions No.(ii) and (iii) with regard to jurisdiction of the civil court and maintainability of the suit for declaration also do not arise. In this case, the plaintiff has proved the sale deed (Ex.P1) by examining its attesting witness Shamsher Singh (PW.1), scribe Bhagwan Dass (PW.2) and attorney of the plaintiff, namely Thakar Singh (PW.3). Vide the said registered sale deed, Bachittar Singh had transferred 14 kanals of land comprised in khasra numbers 771/2 (2-12) and 773 (11-8), out of his share in the joint khata, in favour of the plaintiff. There is specific averment in the sale deed that possession of the aforesaid land was delivered to the plaintiff. When the sale deed (Ex.P1) has been proved, all its contents also stand proved. The trial court has recorded a finding that the plaintiff was not in possession of khasra No. 771, as in the Khasra Girdawari (Ex.D1), Sajjan Singh, co- sharer, was recorded to be in possession of the said khasra number. Even if it is assumed that one of the co-sharers, namely Sajjan Singh, was in possession of the land purchased by the plaintiff, even then the said possession is on behalf of all the co-sharers, including the plaintiff. The Full Bench decision of this court in Bhartu's case (supra) has clearly laid down that on purchase of a specific portion from the joint land, the purchaser will become co-sharer in the khewat and a co-sharer has interest in every part of DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -10- the land, and further possession of a co-sharer in the joint property, in the eyes of law, is possession of all, even if all, but one, are actually out of possession. It was further held that transferee of the joint land under Section 44 of the Transfer of Property Act gets right of transfer to joint possession and to enforce partition irrespective of the fact whether property sold is fractional share or specified portion. In view of the aforesaid principles, in my opinion, the learned first appellate court has rightly come to the conclusion that the suit for declaration filed by the plaintiff was maintainable and the provisions of the Land Revenue Act do not bar the jurisdiction of the civil court to declare the right and title of the plaintiff to get 14 kanals of land from the joint holding at the time of partition of the joint khata. In my view, the learned first appellate court has rightly come to the conclusion that under the law, the plaintiff is entitled to get 14 kanals of land at the time of partition and even if she was not in exclusive possession of the land, her right to seek declaration, which was clouded by the consent decree suffered by Bachittar Singh in favour of his sons and daughter-in- law, cannot be questioned. In the present case, the plaintiff was to seek declaration because Bachittar Singh suffered consent decree of the remaining land in favour of his sons and daughter-in-law and the specific khasra number purchased by the plaintiff was sold in favour of defendants No.7 to 10, and the sale deed in their favour was held to be valid. In that situation, the plaintiff had to be file suit for declaration that she had DASS NAROTAM 2014.12.01 16:13 I attest to the accuracy and authenticity of this document RSA No. 2186 of 1987 ( O&M ) -11- purchased 14 kanals of land in the joint land from Bachittar Singh and she is entitled to get the said land by seeking partition. Thus, both these questions do not arise and in my opinion, the first appellate court has rightly decreed the suit of the plaintiff.
16. With regard to substantial question No. (iv), learned counsel for the appellants has failed to indicate any mis-reading of evidence or mis- interpretation of any document. The entire evidence and documents, available on record, have rightly been considered by the learned first appellate court, and this question also does not arise in this appeal.
17. In view of the above, I do not find any illegality or perversity in the impugned judgment passed by the learned first appellate court.
18. The instant appeal is, accordingly, dismissed with no order as to costs.
October 28, 2014 ( SATISH KUMAR MITTAL )
ndj JUDGE
DASS NAROTAM
2014.12.01 16:13
I attest to the accuracy and
authenticity of this document