Punjab-Haryana High Court
Virat Pal & Ors vs Mam Raj & Ors on 16 November, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Regular Second Appeal No.356 of 1990 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Regular Second Appeal No.356 of 1990
Date of decision: November 16, 2010.
Virat Pal & Ors.
...Appellants
v.
Mam Raj & Ors.
...Respondent(s)
CORAM:
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri Rajesh Sethi, Advocate, for the Appellants.
Shri L.N. Verma, Advocate, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral):
The present Regular Second Appeal has been filed by the defendants to the suit who are aggrieved against the judgment and decree dated 8.11.1989 passed by Sub Judge First Class, Sirsa whereby the suit filed by the respondent was decreed and the appeal filed by the appellants was also dismissed. Hence, the present Regular Second Appeal.
Mam Raj, plaintiff-respondent, on 2.6.1986, instituted a suit for possession by way of pre-emption of land measuring 8 kanals, detail and description of which has been given in the head note of the plaint, against the appellants. It was pleaded in the suit that respondent-plaintiff was a co- sharer with Raja Ram who had sold the land in question to the appellants. In para 1 of the suit, it was specifically averred as under:-
"That the defendant No.3 Ashok Kumar is a minor and hence Regular Second Appeal No.356 of 1990 -: 2 :- he is being sued through defendant No.1 - Virat Pal his real brother and next friend who has got no adverse interest to that of the minor-defendant."
It was further pleaded that respondent-plaintiff was a co-sharer with Raja Ram and Raja Ram had sold the land in question by way of sale deed. It was further averred that in the sale deed an ostensible amount of Rs.23,000/- was mentioned whereas in actual the prevailing market price of Rs.13,000/- was paid. It was further stated that the appellants-defendants were strangers to the property and the respondent-plaintiff being a co-sharer had got a prior right to pre-empt the rights in dispute.
Notice of motion of the suit was issued. The defendants appeared. They denied that the respondent-plaintiff was co-sharer in the property. They further claimed that they were tenants in the property, therefore, the suit is not maintainable. After completion of the pleadings, the trial court framed the following issues:-
"1. Whether the plaintiff has superior right of pre-emption? OPP
2. Whether the price of the suit land at the time of sale is Rs.13,000/-? OPP
3. Whether the defendants have incurred Rs.5,000/- as improvements for levelling the land and preparing water course? OPD
4. Whether the defendants have incurred Rs.2875/- as costs of stamps, Rs.302.75p as registration fee and Rs.200/- scribe fee for the sale deed in dispute? OPD
5. Relief."Regular Second Appeal No.356 of 1990 -: 3 :-
Mam Raj appeared as PW1 and stated that he was a co-sharer in khata No.290 and without giving an option to him, the land was sold for Rs.13,000/-, however, in the sale deed, the sale consideration was shown in excess of Rs.10,000/-. Shri Rajesh Sethi, Counel appearing for the appellants, has referred to the cross examination of Mam Raj wherein he admitted that Raja Ram and Mam Raj were cultivating separate portion of land even though no partition had taken place. Girdhari Lal PW2 stated that the prevailing market rate of the land in the year 1985 per killa was Rs.13,000/- to Rs.14,000/-. The cross examination of Girdhari Lal yielded no gain to the appellant-defendants. Thereafter, the plaintiff closed the evidence. The defendant-appellants examined Deen Dayal DW2, who proved the registered sale deed Ex.D2 and agreement to sell Ex.D1, which was executed by Raja Ram in favour of Ram Partap, father of the appellant- defendants. Appellant No.1 - Virat Pal appeared as DW2. He stated that he had purchased the land and further the land was ploughed with the tractor of Mohan Lal. Mohan Lal appeared as DW3 and proved the receipt Mark A as Ex.D3. He also proved receipt Ex.D4 which was written at the instance of Raja Ram. Bhagi Ram DW4 proved the agreement to sell Ex.D1 which was executed between Raja Ram and Ram Partap. Ram Partap, father of the appellants, appeared as DW5. In cross examination, he stated that his sons were tenant in the land in question. In cross examination, he further stated that he had filed a suit against Raja Ram, however, he stated that he is not in a position to disclose whether in that suit, Mam Raj plaintiff was impleaded as a party or not. Sub Judge First Class, Sirsa held that from the perusal of the evidence, it is proved that Mam Raj is a co-sharer in the property. For drawing this inference, reliance was placed upon the testimony of Mam Raj Regular Second Appeal No.356 of 1990 -: 4 :- PW1 and jamabandi Ex.P1 and P2 for the year 1994-95. Thus, Sub Judge has held as under:-
"There is no need to make a detailed research on this point as through oral and documentary evidence produced on record, it has been established that plaintiff is co-sharer in suit land and the learned counsel for the parties have not disputed this factum."
The plea raised by the appellant defendants to the suit that they were tenants was also not accepted. The appellate court affirmed the findings returned by the court of Sub Judge First Class, Sirsa.
Shri Rajesh Sethi, Counsel appearing for the appellants, vide a separate application, has pleaded that the following substantial questions of law arise in the present appeal:-
1. Whether the courts below have not gravely erred by treating the copy of jamabandi and copy of mutation as documents of title whereas the jamabandi and mutation are not documents of title as held by the Hon'ble Supreme Court in the case titled as Nagar Palika Jind v. Jagat Singh (reported in 1995 (2) RRR, page 444 = 1995(3) PLR page 224?
2. Whether on failure of plaintiff to produce original document of title, courts below were right in holding that plaintiff has proved himself to be a co-sharer in suit land?
3. Whether in a suit to enforce right of pre-emption which remains piratical in nature and relic of feudalism, the courts below were not required to insist for strict proof whereas from the perusal of judgments and decrees of courts below, it Regular Second Appeal No.356 of 1990 -: 5 :- is inferred that both the trial court and first appellate court acted merely on assumptions and hypothetical presumptions, which can not be substitute of proof under the law?
4. Whether the trial court was not required to frame an issue on the basis of the categoric stand of the defendants claiming them as tenants in the suit land under vendor prior to sale thereof?
5. Whether the non-framing of a material issue and its non-
adjudication has not caused procedural prejudice to the defendants now appellants?
6. Whether or whether not the view points of the courts below are based upon such evidence which was neither available on record nor legal in nature?
7. Whether or whether not the impugned judgments and decrees of the courts below can be termed as finding of facts, as finding of fact must be based upon oral or documentary evidence on record duly linked to the claim of the parties?
8. Whether the judgments and decrees of the courts below reveal that the approach shown ot the matter in controversy is wholly erroneous and the findings have been returned by not considering the evidence emanating on record and that too while not taking note fo the law applicable to the facts of the case?"
Shri Sethi further submitted that Ram Partap DW1 had specifically stated that his sons were tenants in the property. This plea cannot be accepted as Virat Pal appearing as DW2 has not stated so in his Regular Second Appeal No.356 of 1990 -: 6 :- evidence. Furthermore, claim of the plaintiff-respondent that he is a co- sharer was not seriously contested.
With the able assistance of the Counsel for the parties, I have gone through the pleadings and the evidence of witnesses examined by the parties. This Court is of the view that substantial questions of law formulated by the Counsel for the appellants, on the facts do not arise, which warrant interference of this Court. However, during the course of arguments, Shri Sethi having read para 1 of the plaint, has submitted that it was the case of the plaintiff that Ashok Kumar, defendant No.3 was a minor. Para 1 of the plaint has already been reproduced above. Counsel further stated that in the appeal also, Ashok Kumar was impleaded as a minor. Having drawn my attention to this question, Counsel for the appellant has submitted that there is a breach of Order 32 Rule 3 CPC as no application was filed before the Court for appointment of the guardian of the minor. To controvert this argument, Shri Verma appearing for the respondent-plaintiff, has relied upon Order 32 Rule 3-A CPC to state that no decree against the minor can be set aside unless it has caused prejudice to his interest. It is further submitted by Shri Verma that property in question was purchased by three brothers and the suit was ably defended by two brothers of Ashok Kumar, who were major, and therefore, it cannot be said that prejudice has been caused to the minor.
Having noticed the contentions of the Counsel for the parties, this Court is of the view that in the present Regular Second Appeal, the following substantial question of law arises:-
1. Whether non submission of application under Order 32 Rule 3 CPC by the plaintiff will make the decree void and further Regular Second Appeal No.356 of 1990 -: 7 :- can it be presumed that non submission of the application has caused prejudice to the interest of the minor?
The above stated question has not been raised for the first time in the present case. On a number of occasions, this question has been dealt with by this Court. A Division Bench of this Court in Gurpreet Singh v. Chater Bhuj Goel, AIR 1992 P&H 95 held as under:-
"8. .... It will be seen from the provisions of O. 32, R. 3, Civil Procedure Code, that the legislature had advisedly provided special protection for minors and persons of unsound mind as they being unable to look after their own interest, require special care. R. 3 specifically provides that for the appointment of a guardian, an application has to be made and such application must be supported by an affidavit giving the details mentioned in subrule (3). Sub-rule (4) of R. 3 provides that no order shall be made on the application filed under R. 3 unless a notice has been served on the guardian, if any, and where there is no such guardian, on the father or on mother or on various other persons mentioned in subrule (4) of R. 3. Sub-rule (3) of R. 4 stipulates that no person is to be appointed guardian without his consent in writing (and the underlined portion which is an amendment made by the State of Punjab) provides that the Court may presume such consent unless it is expressly refused. The inflexible rule therefore is that it is incumbent on the plaintiff suing a minor defendant to file an application in Court for the appointment of a guardian and the subsequent steps that are to be taken are within the purview or province of Regular Second Appeal No.356 of 1990 -: 8 :- the Court. We are of the view of that if an application is not made as provided by O. 32, R. 3 any guardian who may have acted for the minor, would not be clothed with the requisite authority to act as such. The consent that can be presumed is only if an application has been made, and notice issued to the proposed guardian."
The Division Bench further considered the merits of Order 32 Rule 3-A CPC in the facts and circumstances of the case as to whether prejudice was caused or not. After having noted the provisions, the Bench observed as under:-
"11. Mr. Bindra has relied upon a decision of the Calcutta High Court reported as Nirmal Chandra v. Khandu Ghose, AIR 1965 Cal 562, which, in our opinin is similar on facts to the present one. In his case the minors filed a suit seeking a declaration that an ex parte rent decree which had been obtained against them was not binding on them as they had not been properly represented in that rent matter. It was argued by the other side that no prejudice had been caused to the minors as they had been represented by their brother. Reliance was also placed by that party on Mt. Bibi Walian's case (1903) ILR 30 Cal 1021 (supra). The Calcutta High Court however held that as no application had been made, as required under Order 32, Rule 3 of the Code, no notice issued to the proposed guardian as required by sub-rule (4) of Rule 3 nor the consent in writing taken from the proposed guardian under sub-rule (3) of Rule 4, the mandatory Regular Second Appeal No.356 of 1990 -: 9 :- provisions of Order 32, had not been complied with and, as such, the decree in the earlier suit was vitiated. It was also held that Walian's case (supra) had interpreted Section 443 of the Civil Procedure Code (Act XIV of 1882) and the wording of that section was substantially different from the wording of Order 32, Rules 3 and 4. We too are of the view that the non-compliance with the mandatory provisions of Order 32, Rules 3 and 4 of the Code makes the decree void and must also presume to have caused prejudice to the appellant. The finding of the learned single Judge on this point is, therefore, reversed."
In Jagjit Singh v. Harinder Singh & Ors., 2002(3) CCC 174 (P&H), a Single Judge of this Court placed reliance upon the provisions of CPC and held that if any application is not filed for appointment of the guardian, the decree passed is to be declared as void. Recently, another Single Judge of this Court in Raj Kumar & Ors. v. Rohtash & Ors., 2010(3) CCC 566 (P&H) reiterated this view.
In the present case, admittedly, appellant No.3 - defendant to the suit was minor and no application was filed for the appointment of the guardian, especially when this fact was in the knowledge of the respondent- plaintiff that Ashok Kumar was minor. Shri Verma, Counsel for the respondent, has stated that the appellants are barred from raising this argument for the first time as no objection was raised in the written statement and neither this argument was raised before the Sub Judge or the Regular Second Appeal No.356 of 1990 -: 10 :- lower appellate court. Shri Verma has stated that this issue was neither pleaded in the grounds of appeal nor in the application in which substantial questions of law were formulated. Shri Verma has stated that the appellants are barred from raising this contention for the first time during the course of arguments before this Court. He has further canvassed that no Court can record a finding on the issue for which no pleading has been made. This argument is to be rejected at the outset. A legal issue can always be raised at any stage. Furthermore, for the Courts, interest of the minor is of paramount consideration. It is well settled that Courts can always act for larger public interest and can ignore the trivial issues. Therefore, this Court is of the view that after having pleaded in the plaint that Ashok Kumar was minor, it was incumbent for the plaintiff to file application that guardian be appointed. Furthermore, it has been consistently held by this Court that all legitimate means are to be pressed into service to defeat the right of pre- emption.
Hence, the present appeal is accepted. The decree is set aside being void.
[Kanwaljit Singh Ahluwalia] November 16, 2010. Judge kadyan