Punjab-Haryana High Court
Bagicha Singh And Others vs Satnam Singh And Others on 22 September, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No.1468 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1468 of 2012 (O&M)
Date of Decision:22.09.2014
Bagicha Singh and others ... Appellants
Vs.
Satnam Singh and others ... Respondents
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. B.S. Sidhu, Advocate for the appellants.
****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
**** RAMESHWAR SINGH MALIK J.
It is defendants' second appeal against the concurrent findings of fact recorded by both the learned courts below, whereby suit for declaration and permanent injunction filed by the plaintiffs-respondents, was decreed.
Briefly put, facts of the case, as recorded by the learned first appellate court in para 3 to 7 of the impugned judgment, are that land measuring 526 kanals 6 marlas was the ownership of Dara Singh, Desa Singh and Virsa Singh sons of Jhinda Singh, in equal shares. Dara Singh died, and he was succeeded by Chanan Singh (son) Balwinder Kaur (daughter) Chhindo (daughter), Sukhwinder Kaur (daughter) and Bhaianian, widow of Dara Singh. Chanan Singh, son of Dara Singh, died, and he was succeeded by Balwinder Kaur (widow), and Rajwinder Kaur, daughter. The plaintiff Satnam Singh and Lakhvir Singh had purchased the land, measuring 38 kanals, vide sale deed, dated 13.7.1993 from Balwinder Kaur, RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -2- widow of Chanan Singh, son of Dara Singhand Rajwinder Kaur, daughter of Chanan Singh. They further purchased the land, measuring 4 kanals from Sukhwinder Kaur, daughter of Dara Singh, vide sale deed dated 13.12.1985. Balwinder Kaur plaintiff purchased the land, measuring 48 kanals from Chanan Singh, vide sale deed dated 1.03.1983. Balwinder Kaur and said Chhindo also inherited the land, measuring 8 kanals and 1 marla each and as such the plaintiff became owner of the land, measuring 106 kanals 2 marlas. It was alleged that Bagicha Singh and Amrik Singh defendant got a collusive decree dated 9.5.1972 from their father Virsa Singh of the land, measuring 183 kanals 14 marlas, whereas Virsa Singh was owner of 1/3 share of 526 kanals 6 marlas and he suffered a decree of more than his share i.e. 8 kanals 5 marlas. After the decree, Virsa Singh took compensation of 3 kanals 18 marlas which land was acquired by the State Govt. for the purpose of Sem Nala and as such Virsa Singh disposed of the land measuring 12 kanals 3 marlas more than his share, 68 kanals 5 marlas is the bone of contention between the parties as Virsa Singh suffered the civil court decree more than his share, to the extent, of 08 kanals 5 marlas. The land measuring 26 kanals 6 marlas was joint amongst three brothers Dara Singh, Desa Singh and Virsa Singh and no partition had taken place. Virsa Singh could suffer the decree of his share i.e. 1/3rd share, out of the entire land, measuring 526 kanals 06 marlas, but he suffered the decree of specific khasra No.measuring 183 kanals 14 marlas, which he could not do. On the basis of the above said decree, Amrik Singh filed a partition application against Bagicha Singh of land measuring 183 kanals 14 marlas without impleading the other co-sharers. The said application was decided on 26.9.1984. Now Bagicha Singh alongwith his sons, Salwinder Singh, RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -3- Balwinder Singh, Harmohinder Pal Singh and Manjit Kaur, his wife filed an application for partition of land measuring 526 kanals 06 marlas, in which Bagicha Singh alleged his ownership to the half share of 183 kanals 14 marlas, which he got from Virsa Singh, by collusive decree, and by purchasing some other land from Desa Singh by applicants Balwinder Singh, Salwinder Singh, Harmohinder Pal Singh and Manjit Singh. Said application was decided on 23.7.1998. In this partition application, here, question of title, was involved as Virsa Singh suffered the decree of 183 kanals 14 marlas in favour of Bagicha Singh and Amrik Singh of more than his share. As such, the A.C. 1st grade was required to refer the parties to get the question of title, decided from the civil court, but the A.C. Did not follow this mandatory provision, and allowed the partition application vide order dated 23.7.1998 and the mutation of partition, was sanctioned on 26.11.1998 and the present suit was filed on 22.12.1998. Now plaintiff has filed this suit, seeking declaration that they are owners in possession of land, measuring 106 kanals 2 marlas.
On receiving the suit, its notice was served upon the defendants. However, on received notice, out of the defendants, only Bagicha Singh defendant No.1 contested the suit, but the orders did not.
In his written statement, defendant Bagicha Singh has taken preliminary objection that present suit has been filed to challenge a civil court decree dated 9.5.1972 passed in civil suit No.1559 of 1972 titled as Bagicha Singh and Amrik Singh vs. Virsa Singh. The suit is hopelessly time barred, and is not maintainable. The plaintiff is not in possession of 183 kanals 14 marlas of land. Therefore, suit for declaration and injunction is not maintainable. The defendants No.1 and 2 have been in possession of RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -4- 183 kanals 14 marlas of land for the last more than 28 years and they have become owners of this land, even, by way of adverse possession. Plaintiffs have no title, or interest in the above said land. The land has been mutated in the name of defendant No.1 vide mutation No.947 and the civil court has no jurisdiction to set aside the orders of partition dated 26.9.1984 and 6.5.1998 in view of the relevant provisions of Section 158 of Punjab Land Revenue Act, 1887.
Whereas on merits defendant No.1 has alleged that all the three brothers had separated since long and the land, measuring 183 kanals 14 marlas mentioned in para No.3 of the written statement, had fallen to the share of the defendants in oral partition/family settlement. The defendant No.1 denied the alleged sale deed dated 13.7.1993 and 1.3.1983. He further alleged that the judgment and decree dated 9.5.1972 in suit No.1559 of 1992, titled as Bagicha Singh etc. vs. Virsa Singh, is not collusive but the same is genuine decree. He further submitted that partition has already been implemented. Mutation No.783 has been sanctioned on 26.11.1998. So, prayed for dismissal of the suit.
Whereas defendants No.6 to 8 and 15 and defendants No.2(A) and 2(B) also filed their two separate written statements but taking the same plea as has been taken by defendant No.1. All other defendants were ex- parte in the trial court.
On completion of pleadings of the parties, learned trial court framed the following issues:-
"1. Whether the plaintiff is entitled to the declaration, as prayed for? OPP
2. Whether the decree dated 9.5.1972, passed in Civil Suit Bagicha Singh vs. Virsa Singh is illegal, null and void? OPP RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -5-
3. Whether the partition orders dated 26.9.1984 and 23.5.1998 are illegal, null and void? OPP
4. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
5. Whether the suit is within limitation? OPP
6. Whether the suit for mere declaration is not maintainable? OPD
7. Whether the Civil Court has no jurisdiction to entertain and try the present suit? OPD
8. Relief."
In order to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiffs have duly proved their case. Accordingly, suit was decreed vide impugned judgment and decree dated 8.12.2006. Feeling aggrieved, defendants filed their first appeal which also came to be dismissed by learned Additional District Judge, vide impugned judgment and decree dated 21.09.2011. Hence this second appeal at the hands of the defendants.
Learned counsel for the appellants submits that oral family settlement took place amongst all the three brothers namely Dara Singh, Desa Singh and Virsa Singh sons of Jhinda Singh, who were owners in possession in equal shares on the land measuring 526 kanals 6 marlas. He further submits that though this oral family settlement was not recorded in the revenue record, yet it was acted upon by the parties. After family settlement, all the three brothers were coming in their exclusive possession to the extent of their shares. Since Virsa Singh was allotted the land of inferior quality, land measuring 183 kanals 14 marlas came to his share instead of 175 kanals 8 marlas. After having been settled in his exclusive RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -6- possession to the extent of land measuring 183 kanals 14 marlas, Virsa Singh suffered a consent decree in favour of his sons vide civil court decree dated 9.5.1972. On the basis of this civil court decree dated 9.5.1972, mutation was sanctioned in favour of the sons of Virsa Singh and appellants. Learned counsel for the appellant further submits that on the basis of above-said civil court decree dated 9.5.1972 and the mutation, appellants filed an application for partition. Partition was ordered by the competent revenue authority. Learned counsel for the appellants would next contend that once the plaintiffs did not challenge the civil court decree dated 9.5.1972 and the mutation, they have accepted the validity thereof. Suit of the plaintiffs filed on 24.12.1998 was hopelessly time barred. Learned counsel for the appellants submits that none of the plaintiffs have appeared in the witness box to prove their pleadings. The power of attorney holder of the plaintiffs would have no personal knowledge and his statement before the Court is of no consequence. Learned counsel for the appellants concluded by submitting that since the learned courts below failed to consider above-said relevant aspects of the matter, the impugned judgments and decrees were not sustainable in law. In support of his contentions, learned counsel for the appellants places reliance on the following judgments: Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha; 2011 (1) RCR (Civil) 189; Hari Singh v. Sasvinder Kaur @ Sasvinder Ghai and others; 2011 (2) RCR (Civil) 267 and Ram Kishan and another v. Hari Ram; 2008(2) R.C.R. (Civil) 471. He prays for setting aside the impugned judgments and decrees by allowing the present appeal.
Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -7- thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that the alleged family settlement was an oral one. It is also not in dispute that the said oral family settlement was never recorded in the relevant revenue record. None of the legal representatives of Dara Singh and Desa Singh, brothers of Virsa Singh, ever admitted the said oral family settlement. The total land measuring 526 kanals 6 marlas remained as joint khewat of all the three brothers namely Dara Singh, Desa Singh and Virsa Singh sons of Jhinda Singh. In such a situation, even if one co-sharer i.e. Virsa Singh was in excess possession than his share i.e. on the land measuring 183 kanals 14 marlas instead of his share of 175 kanals 8 marlas, he would be treated in possession on behalf of himself as well as on behalf of his other co-sharers, as held by the Hon'ble Full Bench of this Court in Ram Chander v. Bhim Singh; 2008(3) RCR (Civil) 685.
So far as the consent decree dated 9.5.1972 was concerned, admittedly, none of the plaintiffs was party to it. This decree was suffered by Virsa Singh in favour of his sons without impleading his other co-sharers as party to said civil suit. Similarly, the mutation which was sanctioned on the basis of above-said civil court decree dated 9.5.1972, was also without any notice to the plaintiffs. The plaintiffs came to know about the civil court decree as well as above-said mutation only when the land was sought to be RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -8- partitioned in the year 1998. Under these circumstances, suit of the plaintiffs could not have been said to be time barred, because it was filed in the year 1998 itself, i.e., on 24.12.1998. Defendants-appellants did not produce any witness from the legal representatives of Dara Singh and Desa Singh to prove the alleged oral family settlement. Thus, the appellants failed to prove the factum of oral family settlement. Relevant revenue record was also against them in this regard. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing their respective impugned judgments and the same deserve to be upheld.
In the absence of proof of the alleged oral family settlement, Virsa Singh was in possession in excess of his share. He was admittedly in possession to the extent of 183 kanals 14 marlas, whereas his share comes to 175 kanals 8 marlas. Once Dara Singh and Desa Singh others brothers of Virsa Singh or their legal representatives were not party to the civil court decree dated 9.5.1972 and also to the subsequent mutation sanctioned on the basis of said civil court decree dated 9.5.1972, the civil court decree as well as the mutation, would have no binding force against the plaintiffs.
It is neither pleaded nor argued case on behalf of the appellants that Virsa Singh was entitled to the land measuring 183 kanals 14 marlas as per his share in the joint khewat. In fact, Virsa Singh and his sons were proceeding in furtherance of their common intention so as to grab the share of other co-sharers to the extent of about 6 kanals of land. The appellants were not entitled for possession over this excess land to the extent of about 6 kanals either on facts or in law. The land was never sought to be partitioned by Virsa Singh during his life time. Further, since the share of RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -9- Virsa Singh was only to the extent of 175 kanals 8 marlas of land, neither he was competent nor he had any authority to transfer the total land measuring 183 kanals 14 marlas, even by way of collusive decree dated 9.5.1972. In this view of the matter, it can be safely concluded that learned courts below did not exceed their jurisdiction, while passing their respective impugned judgments and the same deserve to be upheld, for this reason also.
So far as the judgments relied upon by the learned counsel for the appellants are concerned, there is no dispute about the law laid down therein, however, on close perusal thereof, cited judgments have not been found to be of any help to the appellants, being distinguishable on facts. It is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge-made law thereto. Sometimes, difference of even one additional fact or circumstance can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another v. State of Tamil Nadu and others; 2002(3) SCC 533.
A combined reading of both the impugned judgments would show that the learned courts below considered each and every relevant aspect of the matter in detail, before recording cogent and well convincing findings on each issue. Before arriving at a judicious conclusion, the learned first appellate court rightly re-appreciated the facts of the case as well as the evidence led by the parties, so as to record his own cogent findings, in para 12 to 28 of the impugned judgment. The relevant findings recorded by the learned first appellate court in para 18 to 26 of the impugned judgment, read as under:-
"Since, total land was 526 kanals 6 marlas, jointly owned and RAJEEV THAKRAL 2014.09.25 13:57 possessed by Dara Singh, Desa Singh and Virsa Singh, it I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -10- calculated, each all the brothers, namely Dara Singh, Desa Singh and Virsa Singh, would be owners of 175 kanals 8 marlas of land, meaning thereby Desa Singh was, also owner of 175 kanals, 8 marlas of land.
Whereas, Virsa Singh vide collusive decree dated 9.5.1972 transferred the land, measuring 183 kanals 14 marlas in favour of his two sons Bagicha Singh, and Amrik Singh, appellants No.1 and 2 vide decree dated 9.5.1972 proved on the file Ex.D8. Now, it is for the defendants/appellants No.1 and 2 to prove that how their father had become owners of the land measuring 183 kanals 14 marlas. Although in the written statement in para no.1 on merits, a plea has been taken by Bagicha Singh that all the three brothers had separated since long, and the land, measuring 183 kanals 4 marlas mentioned in para No.3 of the written statement had fallen to the share of the defenjdants in oral partition/family settlement whereas neither any such oral partition/family settlement has been proved on the file nor there is any evidence on the file, i.e. revenue record, wherein it is reflected meaning thereby there took place no family partition or settlement amongst the three brothers namely Dara Singh, Desa Singh and Virsa Singh. If in revenue record one of the joint owner is shown in possession, in excess of his share that does not mean that he has become owner of that part of the property. Although it is alleged that plaintiffs/respondents No.1 to 4 have not produced or proved on file, the sale deed in their favour whereas when the sale deeds are not disputed so need not to be proved and on the basis of the sale deed and inheritance the mutations are proved to have been sanctioned in their favour. The copy of mutation Ex.P2 has been proved on file, which goes to show that plaintiffs/respondents No.1 and 2 became owners of the land, measuring 48 kanals, which was purchased from Chanan Singh, deceased son of Dara Singh vide sale deed dated 1.3.1983. Similarly mutation No.1683 Ex.P7 also shows that plaintiffs/respondents No.1 and 2 Satnam Singh and RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -11- Lakhvir Singh, purchased land measuring 38 kanals from Balwinder Kaur widow of Chanan Singh deceased son of Dara Singh vide sale deed dated 13.7.1993 Ex.P-10. The mutation No.1306 Ex.P9 shows that plaintiff Balwinder Kaur and Chhindo got land 16 kanals 2 marlas from Smt. Bhaian, their mother, widow of Dara Singh and 4 kanals is proved to have been purchased by Satnam Singh and Lakhvir Singh from Sukhwinder Kaur vide sale deed dated 13.8.1985. So, these documents are sufficient to prove and hold that plaintiffs/respondents No.1 to 4 are owners, in possession of the land, measuring 106 kanals 2 Marlas to the extent of their share.
May be none of the plaintiffs have appeared in the witness box to prove the pleadings whereas their attorney Baghel Singh had appeared in the witness box to prove the pleadings and the power of attorney holder had not at any point of time in the cross examination failed or refuse to give answer to any question merely on the ground that he is not aware of the said fact. Moreover the entire case is based on documentary evidence. When the power of attorney in favour of Baghel Singh has been proved as Ex.P1 so respondents have no right to challenge its execution except its validity. Copy of attorney is proved, so it means that the attorney of the plaintiffs/respondents No.1 to 4 has proved the pleadings. As such, no adverse inference can be drawn against the plaintiffs/respondents No.1 to 4. As such, the findings of the trial court arrived at on issue No.1 are affirmed.Issues No.2 to 5
The Learned Counsel for the appellants argued that first of all the respondents/plaintiffs No.1 to 4 have got no locus standi to challenge the decree dated 19.7.1972 executed by their father in their favour nor it can be declared as illegal, null and void. Moreover to challenge this decree the limitation as provided in the Limitation Act, 1963, is three years, whereas to challenge it, the present suit has been filed on 24.12.1998 after a gap of RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -12- 26 years. So, is time barred.
The learned counsel for the appellants further argued that partition proceedings finalized by the revenue authorities/A.C. Ist Grade cannot be challenged in a civil court. In other words, the jurisdiction of the civil court, to set aside the partition proceedings is barred. Whereas in the revenue record the appellants have been rightly shown as owners in possession of 183 kanals 3 marlas, whereas after hearing the counsel for the appellants I am of the opinion that while deciding issueNo.1 it has already been held by the court that respondents No.1 to 4 are owners in possession of 106 kanals 2 marlas of land and Virsa Singh was owner to the extent of 1/3rd share of land, out of land measuring 526 kanals 6 marlas which comes to 175 kanals 8 marlas but Virsa Singh has suffered a decree in favour of Bagicha Singh and Amrik Singh appellants No.1 and 2 to the extent of 183 kanals 14 marlas i.e. in excess of his share to the extent of 8 kanals 5 marlas.
However, the trial court has also rightly held while deciding issues No.2 to 5 that is admitted fact that Bagicha Singh and Amrik Singh filed a civil suit for declaration that they are owners in possession of land, measuring 183 kanals 14 marlas wherein they have mentioned specific Khasra nos., but no partition has been effected, between Desa Singh, Virsa Singh and Dara Singh. Therefore, Virsa Singh was not competent to suffer the decree of specific khasra nos. and more than his share, but he suffered a decree for specific khasra nos. and more than his share. As such, the decree is surrounded by Virsa Singh suffered a decree in favour of Bagicha Singh and Amrik Singh more than his share to the extent of 8 kanals 5 marlas. It is also worthwhile to mention that Virsa Singh also obtained compensation of land measuring 3 kanals 18 marlas which was acquired by State of Punjab for the purpose of water logging channel. Once Virsa Singh suffered decree of land, measuring 183 kanals 14 marlas and more than his share to the extent of 8 kanals 5 marlas he had no right to get RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -13- compensation of land, measuring 3 kanals 18 marlas. Therefore, after passing of the decree, Virsa Singh had been dealing with his land, which means the partition in question was never acted upon. So, in view of the above discussion, it can safely be presumed that the decree dated 9.5.1972, cannot be said to be legal from any angle.
It is with regard to partition. It has been held by the trial Court "the partition application was decided on 26.9.1994. This order was never got implemented in the revenue record. Only mutation was sanctioned on 26.11.1998 on the basis of the order dated 26.9.1984. As per Section 121 of the Punjab Land Revenue Act, an instrument of partition is required to be prepared by the Revenue Officer causing partition but the defendants have failed to place on file, any record that any instrument of partition was ever prepared. Accordingly, as per Section 122 of the Land Revenue Act, the period to give effect instrument of partition is three years from the date recorded in the instrument of partition. Defendants have not produced any instrument of partition, prepared by the Revenue Officer, and second its effect could have given within a period of three years from the date of record in the instrument of partition. So, mutation sanctioned, on the basis of the order dated 26.9.1984 of partition on 26.11.1998 is illegal."
During the course of hearing, learned counsel for the appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its jurisdiction under Section 100 CPC, as held by the Hon'ble Supreme Court in Naryanan Rajendran and RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.1468 of 2012 (O&M) -14- another v. Lekshmy Sarojini and others; 2009(2) RCR (Civil) 286.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, instant appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 22.09.2014 rajeev RAJEEV THAKRAL 2014.09.25 13:57 I attest to the accuracy and authenticity of this document High Court Chandigarh