Punjab-Haryana High Court
Smt.Kamla Devi vs Harish Kumar And Others on 9 August, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
CR No.4790 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.4790 of 2011
Date of Decision: 9 - 8 - 2011
Smt.Kamla Devi ....Petitioner
v.
Harish Kumar and others ....Respondents
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
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Present: Mr.Nonish Kumar, Advocate
for the petitioner.
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KANWALJIT SINGH AHLUWALIA, J. (ORAL)
The present revision petition has been filed to assail the order dated 8.4.2011 passed by the Court of Additional Civil Judge (Sr. Division), Karnal whereby the application filed on behalf of defendants No.5 and 6 under Section 11 CPC was allowed and the suit was dismissed.
The trial Court in the impugned order concluded that the petitioner-plaintiff is estopped by her conduct in filing the civil suit as she was not competent to do so being not the co-heir of defendants No.1 to 4. To appreciate the controversy in right perspective, it will be necessary to give brief facts:
The present petitioner had filed a suit for possession by way of pre-emption under Section 22 of the Hindu Succession Act with a CR No.4790 of 2011 [2] consequential relief of permanent injunction. Petitioner-plaintiff is daughter of Sadhu Ram. Defendants No.1 to 3 are sons of Sadhu Ram and defendant No.4 Parmeshwari Devi is widow of Sadhu Ram. It was stated in the suit that in the year 1965, Sadhu Ram predecessor-in-interest of plaintiff, defendants No.1 to 4 and 7 had constructed a house over the land measuring 0 Bigha 14 Biswas, comprised in Khasra No.5721/1(0-14). It was stated that after Sadhu Ram had died, the plaintiff, defendants No.1 to 4 and 7 had inherited the house in dispute and became owners in possession of the house in dispute being legal heirs. It was further pleaded that defendants No.1 to 4 with intent to cheat the plaintiff and proforma defendant No.7 with dishonest intention had sold the property to respondents No.5 and 6 vide registered sale deed dated 5.4.2010 for a fictitious sale consideration of ` 35.00 lacs. Petitioner being a class one legal heir of Sadhu Ram had filed a suit for pre-emption qua the said property. Upon notice having been issued, defendants No.5 to 7 filed an application that the suit was liable to be dismissed as the plaintiff has not brought to the notice of the Court that in an earlier suit, she had effected a compromise with defendants No.1 to 4 and had obtained ` 5,25,000/- and had admitted that defendants No.1 to 4 shall be owners of the entire property left by Sadhu Ram. Copy of the judgment rendered in the earlier suit, decided on 31.10.1998 is attached as Annexure P2 along with decree sheet Annexure P3. It will be pertinent to reproduce relevant portion of the decree and the same reads as under:-
"It is ordered that the suit of the plaintiffs is decreed and it is held that the plaintiffs are the only legal heirs to inherit the estate left by deceased Sadhu Ram and the mutation no.16658 is set aside being illegal and void. There is no order as to costs."CR No.4790 of 2011 [3]
The learned trial Court while relying upon a decision in Narayansingh v. Bhagwansingh, 2005(4) RCR (Civil) 177 as well as taking into consideration the judgment and decree Exs.P2 and P3 respectively in its impugned order has held as under:-
"9. .....However, the Hon'ble Madhya Pradesh High Court in the above cited case itself has also held that a compromise decree can create estoppel by conduct of parties. A perusal of para no.6 of the judgment dated 31.10.1998 passed in the alleged earlier civil suit no.107 of 1995, makes it ample clear that the present plaintiffs themselves gave their consent for declaring defendant nos.1 to 4(vendors of the applicants) as the only legal heirs to inherit the entire estate left by deceased Sadhu Ram. Obliviously, the house in question, which was also admittedly owned by Sadhu Ram, also include in his estate, which was to be inherited by defendant nos.1 to 4 (vendors of applicants) only. Since the house in question was inherited by the vendors of applicants only, therefore, the plaintiff having no right therein, can not claim pre-emption of sale deed executed by them (defendant Nos.1 to 4). They are estopped by their own act and conduct. ..."
Once the petitioner-plaintiff had received ` 5,25,000/- lacs in the year 1998 from her brothers and had given up all claims to the estate of Sadhu Ram, she could not have filed the present suit to question the right of defendants No.1 to 3 her brothers and defendant No.4 widow of Sadhu Ram to effect the sale deed in favour of respondents No.5 and 6.
Hence, there is no merit in the present petition and the same is hereby dismissed.
( KANWALJIT SINGH AHLUWALIA ) August 9, 2011. JUDGE RC