Punjab-Haryana High Court
Smt. Sita Devi And Another vs Hans Raj on 28 February, 2014
Author: K. Kannan
Bench: K. Kannan
RSA No.1456 of 1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1456 of 1986
Date of Decision.28.02.2014
Smt. Sita Devi and another ......Appellants
Versus
Hans Raj ......Respondent
Present: Mr. Shailendra Sharma, Advocate
for the appellants.
Mr. J.R. Mittal, Senior Advocate with
Mr. Lalit Sharma, Advocate
for the respondent.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
-.-
K. KANNAN J.
1. The defendants in the suit are the appellants before this Court. The respondent's suit was for declaration and injunction from interfering with the appellants' possession of the property in khasra No.433//24/1 comprised within specific boundaries belonging to him and for a restraint against the defendants from in any manner interfering with possession or demolishing the wall which he had constructed. The defendants had contended that the plaintiff's vendor Karamjit Singh was also the defendants' own vendor and the plaintiff's vendor had no right to the extent of property conveyed in favour of the plaintiff. The defendants would contend that they had been earlier purchasers of the property in the very same khasra number and there had been four other transactions of sales by Karamjit Singh before the Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -2- property was sold to the plaintiff. The contention is that the property in khasra No.24/1 had comprised of only 5 kanals 5 marlas and the vendor Karamjit had exhausted by sales of the property except for extent of 3 marals and the alleged sale in favour of the plaintiff of the extent mentioned could not have, therefore, lawfully conveyed any right in the property.
2. The defendants are the appellants before this Court as husband and wife. It is admitted case that Karamjit had sold 18 marals in khasra No.24/1 to appellant No.1 Sita Devi by registered sale deed dated 30.05.1974. Karamjit Singh had also sold 1 kanal 13 marals of land in khasra No.24/1 to Sita Devi's husband Raj Kumar, who is the second appellant on the same day on 30.05.1974. The sale had been described by boundaries and it refers a rasta on the east. There were two other sales which Karamjit had made in respect of the very same khasra number on 05.06.1974 to Balbir Singh and 17 marlas of land to one Desh Bandhu. The sale deed in favour of Balbir Singh and Desh Bandhu are not before Court but there is a reference to the transactions of sale in Ex.D8 which is copy of the jamabandi that registers the mutations sanctioned with reference to the sales in favour of various purchasers referred to above. The trial Court decreed the suit on the only ground that there had been a sale in respect of the extent mentioned in the suit property but did not make any attempt to reconcile the several extent of properties which the vendor Karamjit had made with reference to the same khasra number and as to how the vendor could have had ownership of the property which he purported to make in favour of the appellant. It would appear that the defendants Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -3- themselves had earlier filed the suit in respect of the property purchased by them against Karamjit as well as the present plaintiff but for some curious reason, the earlier suit was not taken up along with the suit by the plaintiff. When the defendants' suit was taken up later, the fact of the decree in earlier suit prevailed on the presiding officer to dismiss the suit filed by the defendants. The appeal against the plaintiff's suit also came to be dismsised by the fact that the defendants' suit for injunction had been dismissed. The defendants did not press for adjudication on their own suit for injunction and when the decree in the plaintiff's suit was confirmed, in appeal filed by the defendants, they had brought a challenge to this court by means of present second appeal only the plaintiff's suit for declaration and injunction and they have not preferred any second appeal against the dismissal of their own suit for injunction.
3. At the outset, it was pointed out by the counsel appearing on behalf of the plaintiff that the appeal is barred by res judicata by the dismissal of the defendants' suit, which had been filed earlier, had become final and they were not entitled to contend for position that the plaintiff was not entitled for the property which was decreed. The appellants defendants would, however, contend that their own suit was only for the bare relief of injunction where there was no requirement for an adjudication for title and the dismissal of their suit for injunction would have no bearing for an adjudication on title sought for by the plaintiff where the most crucial issue was whether the plaintiff's vendor Karamjit had any right to convey the property of the extent mentioned there in. This was particularly so on account of the fact that the Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -4- defendants were earlier purchasers and the right in the property cannot be denied to their disadvantage and without ascertaining whether the vendor had any right to sell the property of the extent mentioned above. The plaintiff had made pointed reference to the fact that plaintiff himself was aware that he had no right to purchase the property of the extent mentioned in the sale deed and therefore had obtained a supplementary document subsequently setting out extent of 11 marlas alone as the property which a vendor could sell and the supplementary sale deed brought on 28.02.1975 Ex.D9 was clear admission of the fact that the plaintiff did not have a title to the property claimed by him.
4. On the respective contentions raised by the parties, the following substantial questions of law have been framed:-
i) Whether the plaintiff's title to the entire property could be upheld without ascertaining his vendor's entitlement to give valid title to such an extent ?
ii) whether the supplementary sale deed executed by Karamjit Singh was itself an intrinsic admission of the title of the plaintiff's vendor only to an extent of 11 marlas in the particular khasra numbers and consequently, the suit for the entire property purported to have been purchased by the plaintiff for 1 kanal 13 marlas was not maintainable ?
iii) whether the appellants will be barred by res judicata by the finality that has obtained to the cross suit filed by the appellants against the present plaintiff which was dismissed on 28.02.1987 and the appeal dismissed on 20.07.1992 ?
5. The first point which would require to be considered is whether the dismissal of the defendants' suit which had been filed earlier constituted res judicata against them from contending that the plaintiff has no right to the property or the plaintiff's suit. I have gone through the suit filed by the defendants in civil suit No.440 dated Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -5- 30.08.1986 against Hans Raj. The suit had been for the bare relief of injunction restraining the defendant from dispossessing them or putting up any construction or alteration in the light of measuring 1 kanal 11 marlas owned and possessed by the 2nd plaintiff Sita Devi. There is an issue framed by the Court whether the plaintiffs had proved their ownership over the property. At the time of trial, it appears that there had been evidence to the effect that a portion of the property in khasra No.24/1 had been acquired by the Government for laying a road and both the plaintiff and the defendants were contending that they had received compensation from the Government for the property lost in the acquisition. The Court made an issue about the fact that the present defendants who were plaintiffs in that case had not proved that they had obtained any compensation and therefore, the Court held that they could not be said to have proved the ownership. The appeal against this judgment filed in C.A. No.108 dated 27.04.1987 came to be disposed of on 20.07.1992 by which time, the appeal filed by the defendants in the present subject matter before this Court namely in Civil Appeal No.199/1985 has been disposed of on 10.04.1986. The judgment in civil Appeal No.199 of 1985 itself prevailed on the adjudication in the appeal filed by the present defendants who are the plaintiffs in the earlier suit. At no point of time was an issue of whether the plaintiff's right to purchase the property of the extent mentioned ever put for appraisal or properly considered. The defendants' earlier suit for injunction could have no bearing to plaintiff's title and there was no scope for applying the principle of res judicata. The Court decided on the plaintiff's title to the property by virtue of the fact that the plaintiff after obtaining a Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -6- supplementary deed under Ex.D9 restricting his entitlement only to 11 kanals in khasra No.24/1 sought to annul the effect of this document by a suit filed against Karamjit on 06.05.1983. The suit had been instituted only against his vendor Karamjit and the case did not go through for a fulfledged trial. On the other hand, soon after the suit was instituted, it appears that a decree was passed by consent by Karamjit. It was the decree obtained by him setting aside the supplementary sale deed that gave strength to the plaintiff to contend that he had title to the whole of the property and the recitals in the supplementary deed could, therefore, be fully discarded.
6. As the argument got underway, I requested the Senior Counsel appearing on behalf of the respondent as the counsel who was representing the plaintiff to prove as to how the plaintiff's claim for title could succeed without proving that his vendor had title to the property which was conveyed and how a bare consent secured against the vendor annulling a supplementary deed could be used against the defendants who had been earlier purchasers of the property. All that the learned Senior Counsel would respond to this query would only be that the purchasers of various extents of property had not been examined in this case nor the documents filed in Court. The defendants were only relying on the jamabandi entries in the mutations ordered under Ex.D8 and this ought to have been discarded and the dismissal of the defendants' suit itself must be taken as concluding the issue that the plaintiff has got right to the property which he has purchased from the vendor Karamjit.
7. The most crucial issue in suit for declaration of title where Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -7- the defendants denied the plaintiff's entitlement by pointing out to other transactions of the vendor, the plaintiff is bound to show that the vendor had such a right in the property. The Senior Counsel would argue in response to the appellants' contention that vendor did not have the right to the property by contending that a local commissioner had been appointed before this Court and the commissioner had found the existence of a wall and the possession of the plaintiff. The plaintiff could not have come by possession of the property unless the vendor had ownership over the same and therefore, the plaintiff's possession itself must be taken as establishing his title to the property. I find this arguments to be rather strange, for possession invariably follows title and not vice versa. When a dispute is put on issue for adjudication whether the plaintiff has title to the property, the logic cannot be in this way that since the plaintiff is in possession, it must be taken that his vendor has title to convey the same to him. The presumption that obtains under Section 110 of the Indian Evidence Act that recognizes the age old axiom that possession is 9 points in law would apply in suit of lost grants or where source of title is not known and the person that claims that he is in possession of property cannot be correct, unless he proves better title. In this case that is precisely the point that the person against whom the plaintiff is seeking for declaration of title attempted to show better title by pointing out of the fact that they have purchased the very same property in khasra No.24/1 within specified boundaries through two documents one in favour of one Sita Devi that makes reference to a sale in khasra No.24/1 of the extent of 18 marlas through sale deed dated 30.05.1974 and another in favour of Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -8- Raj Kumar of an extent of 1 kanal 6 marlas in khasra No.24/1 through sale deed 30.05.1974. Apart from these sale deeds, the evidence which was adduced was that the sale in favour of Balbir Singh in khasra No.24/1 was an extent of 1 kanal 13 marls and property sold in favour of Desh Bandhu through a sale deed dated 03.07.1974 was to the extent of 17 marlas in khasra No.24/1. The total extent of property in khasra No.24/1 as seen from jamabandi is 5 kanals 5 marlas. If these extent of properties conveyed through four sale deeds are added up, it leaves no scope for a sale of 1 kanal 13 marals in favour of the plaintiff.
8. There surely was a need for the plaintiff to explain why the supplementary deed was written and what was the necessity to have a suit instituted immediately thereafter to have the supplementary deed annulled. There is a sure recital of the plaintiff's vendor in that to the sale deed already made in favour of Hans Raj where he had admitted as follows:-
"....In the sale deed inadvertently khasra number of the sold land measuring 1 kanal 13 marlas has been mentioned as out of Khasra No.433//24/1 min whereas actually area out of Khasra No.433//24/1/0-11 and 433//17/3/2/1-2 min has been sold and this area only is in possession of the purchaser and the purchaser is the owner and in possession of the same and the sale to this effect be treated as such this corrigendum (tateema) sale deed has been executed with my free consent for record. 24.02.1975 i.e. 5 phagun 1896 sakan. According to this supplementary sale deed, the earlier sale deed of 25/7/1974 be corrected."
This document was surely relevant and a mere fact that even after rectifying a mistake suffered, a decree annulling the transaction cannot erase the admission which the vendor had to make in the light of the earlier transactions of sale made in favour of defendants and to other persons. It is irrelevant that purchasers of other properties have not Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -9- been examined by the defendant. On the other hand, the plaintiff as a person coming to Court seeking for its aid for declaration of title must have brought those purchasers himself and explained as to how in spite of sales in their favour, the vendors still had title to the property. Admittedly, Karamjit Singh must have given evidence as to how he had title to the property which was sought to be conveyed in favour of the plaintiff.
9. The appellant explains as to how the various extents conveyed by the vendor could be illustrated through a plan. The rough sketch shown by him illustrates the location of the property comprised in khasra No.24/1 as situate south of the property in khasra No.17/3/2. Right across the property is from North to South there is a private rasta which had been made by the vendor Karamjit and this rasta consumes 13 ¼ marlas in khasra No.17/3/2 and consumes 7 ½ marlas in khasra No.24/1. The partial consumption of 7 ½ marlas through a private rasta had still not been brought in the revenue records and therefore, this made possible for Karamjit to make it appear as though he still had 11 marlas of land left with him to sell in favour of the plaintiff. The description of the property in the sale deed made in favour of the defendants which was anterior in point of time to the plaintiff's document showed that the property sold in favour of Sita Devi and Raj Kumar even referred as the property west of the rasta. Even the plan filed by the plaintiff after the suit was instituted under Ex.P2 shows the existence of a rasta. The counsel points out that the plaintiff had committed a deliberate fraud by not referring to the supplementary sale deed that had delimited the extent of property under khasra No.24/1 Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -10- only to 11 marlas. Although the suit had been filed on 16.04.1983, the plan had been prepared by the plaintiff only on 29.04.1983 to suit his own convenience.
10. One thing becomes clear that even if the plan given by the plaintiff under Ex.P2 does not make any reference about the supplementary sale deed, it makes evident the existence of a private rasta in the manner contended by the defendants. The sale in favour of the plaintiff cannot be supported for the only reason that the vendor Karamjit simply did not have title to the extent of property mentioned by him in the sale deed. If this rasta itself must be taken out of consideration as property unavailable for private enjoyment then it should only mean that what was available was at best only 3 ½ marlas. The suit for declaration in respect of a larger extent cannot simply succeed. Learned Senior Counsel appearing on behalf of the respondent would rely on judgment of the Supreme Court in Meghmala and others Vs. Narasimha Reddy 2010(8) SCC 383 that if the party suppressed an important document and obtained an admission at the High Court, he cannot be heard on merits. The attempt of the learned Senior Counsel was to state that at the time when the 2nd appeal was moved for admission, the defendants had not disclosed the fact of the dismissal of their suit and the appeal filed by them earlier. I cannot take this to be of any relevance, for a suit for the bare relief of injunction cannot be taken to conclude the issue of title sought at the instance of the plaintiff. I have already held that the dismissal of the defendants' earlier suit for injunction could not conclude the issue of ttle for the plaintiff. The dismissal of the defendants' own suit cannot be taken as Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -11- constituting a recognition of the plaintiff's right to the property of the extent claimed by him. That required an independent adjudication and the error committed by the two Courts below by taking the dismissal of the defendants' suit as making possible an inference that the vendor had title to the property to convey to the plaintiff was clearly wrong.
11. The substantial questions of law which have been raised would, therefore, be required to be answered thus. The dismissal of the defendants' suit for injunction cannot conclude the plaintiff's entitlement to the property purported to have been conveyed by the vendor without addressing an issue of whether the vendor had title to the property after engaging in sales to other persons in respect of the very same khasra number. On an issue whether the plaintiff's title to the property was possible to be upheld without ascertaining the vendor's title to the property, it must be observed that the plaintiff's case will have to be always seen only by examining the issue of whether the vendor was entitled to the property and if the vendor was not, he could have conveyed no better title to a purchaser. Supplementary sale deed executed by the plaintiff's vendor was a clear admission of what his entitlement was and a recognition of mistake which he had committed in allowing for extent of 1 kanal 13 marals of land in khasra No.24/1 which was unavailable to him. A post decree affirmation against his vendor was a brazen act of collusion and cannot bind the defendants who were prior purchasers from the very same vendor and the plaintiff's decree against Karamjit did not take away right of the plaintiffs which they had purchased.
12. The judgments of the two Courts below are set aside and Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh RSA No.1456 of 1986 -12- the appeal filed by the defendants is allowed. There have been certain constructions which have been made over a period of time and the plaintiffs cannot take advantage of such constructions. The dismissal of the suit and allowing the appeal might give rise to the situation of a fresh bout of struggle between parties one trying to take the property from another. If I must hold that the plaintiff had not established his right but he had allowed some construction to be brought on his land, by a seamless procedure that would allow for proper adjustment of rights between the parties, the plaintiff is bound to give up right in excess over 3 ½ marlas of land in khasra No.24/1. Any construction which he had raised would require to be removed. The rough copy of the plan as drawn by the appellant and produced before this Court as Annexure A-5 shall be taken to represent the correct state of affairs and it shall form part of the decree and the plaintiff shall cede the extent retained by him through boundary walls constructed by him in the property in khasra No.24/1. If there is any obstruction which is caused by the plaintiff, the defendants shall be at liberty to seek the assistance of the Court and cause for removal of the construction without having to institute a fresh suit. This direction is given in the interest of justice to quell the continuance of dispute after three decades.
13. The appeal is allowed with the above directions.
(K. KANNAN) JUDGE February 28, 2014 Pankaj* Kamboj Pankaj Kumar 2014.03.10 15:41 I attest to the accuracy and integrity of this document Chandigarh