Punjab-Haryana High Court
Jang Bahadur And Ors. vs Bhagirthi on 23 December, 2005
Equivalent citations: (2006)142PLR549
Author: Kiran Anand Lall
Bench: Kiran Anand Lall
JUDGMENT Kiran Anand Lall, J.
1. A declaratory civil suit with the consequential relief of possession (bearing Civil Suit No. 172/81) was filed by Bhagirthi plaintiff (daughter of Dhan Singh) in respect of the land detailed in para No. 1 of the plaint, against Jang Bahadur etc. defendants. The relief claimed in the last para of the plaint, however, was only for a decree for possession to the extent of 1/4th share of the suit land against the defendants as the judgment and decree passed in suit No. 232 of 1972 were null and void and, therefore, the same did not confer any title on defendants No. 1 to 5 in respect of the estate of Dhan Singh deceased, though in para No. 12 of the plaint, reference to "a testamentary document executed by Shri Dhan Singh deceased in favour of defendants No. 1 and 2" with regard to the suit land was also made.
2. Relationship between the parties, inter-se, as detailed in para No. 2 of the plaint, is as under:
Surat Singh | Dhan Singh _______________________|___________________________ | | | | | Bhagirthi Rajkali Naurang Dalip Singh Anokhi Plff. Deft. No.7 Deft. No.6 Deft. No.3 Deft. No.4 | _______________________________________|__________________ Smt. Krishna Teg Singh Sher Singh Jang Bahadur Deft. No.5 Deft. No.2 Deft. No.1 (Anokhi, defendant No. 4, is wife of Dalip Singh defendant No. 3 and Krishna, defendant No. 5, is wife of late Teg Singh).
3. According to the plaintiff, the suit land was ancestral in the hands of her father Dhan Singh, who had expired about 7 years prior to the filing of this suit. Her brother, Dalip Singh, however, obtained a decree in his favour and that of defendants No. 1, 2, 4 and Teg Singh, husband of defendant No. 5 in suit No. 232 of 1972 titled Dalip Singh etc. v. Dhan Singh, by playing a fraud on Dhan Singh and thereby got the ownership of his land measuring 634 kanals 14 marlas transferred in his favour and the said other defendants. The validity of this decree has been assailed by Bhagirthi plaintiff on the grounds, detailed in Clauses (a) to (m) of para 10 of the plaint. Dalip Singh also got 139 kanals 11 marlas land of Dhan Singh mutated in favour of defendants No. 1 and 2 on the basis of a forged will, purporting to have been executed by Dhan Singh. On the basis of the decree and the will, mutations were also got sanctioned but without issuing any notice to the plaintiff.
4. The defendants contested the suit. They denied the relationship of Bhagirthi plaintiff with Dhan Singh and also the ancestral nature of suit land. According to them, parties are governed by agricultural custom, according to which Dhan Singh was within his rights to give his property to defendants No. 1 to 5, in lieu of the services rendered by them. It was denied that the consent decree was obtained by playing a fraud on Dhan Singh. The latter was a big landlord and apprehending that as per the law prevailing at that time, his land holding may be reduced to 10 acres, he entered into a family partition with his family members and later suffered the impugned decree (dated 30.5.1972) on the basis thereof, in a suit filed against him, by Dalip Singh etc. It was further pleaded that earlier too, the plaintiff had filed a similar suit which was dismissed. Objections regarding limitation, maintainability of the suit in the form in which it was filed, and non-fixation of proper court fee were also taken up.
5. Following issues were struck by the trial court, for decision:
1. Whether the plaintiff is related to Dhan Singh and defendants as alleged in the para No. 2 of the plaint? OPP
2. Whether the suit land was ancestral of Dhan Singh deceased? OPP
3. Whether the plaintiff, defendants No. 3, 6 and 7 and Dhan Singh are governed by customary law, if so, what that custom is? OPP
4. Whether the judgment and decree passed in suit No. 232 of 1972 on 30.5.1972 is null and void and liable to be set aside on the grounds alleged in para No. 10 of the plaint? OPP
5. Whether the plaintiff is not bound by the mutation in respect of the land detailed in para No. 1 (b) of the plaint? OPP
6. Whether the plaintiff has no locus-standi to file this suit? OPD
7. Whether the suit is not maintainable in the present form? OPD
8. Whether the court-fee is sufficient? OPP
9. Whether the suit is within the limitation? OPP.
10. Whether the present suit is barred by the principle of resjudicata? OPD
11. Whether Dhan Singh executed a valid will about his property on 30.8.1974 in favour of Jang Bahadur and Sher Singh? (OPD).
12. Relief.
6. On conclusion of the trial, the trial court dismissed the suit in toto, answering issues No. 1 to 4, 9 and 11 against the plaintiff and in favour of the defendants. The remaining issues viz. No. 5 to 8 and 10 were not pressed by the defendants and were, therefore, decided against them. In appeal filed by the plaintiff, the first appellate court upheld the finding regarding validity of the consent decree dated 30.5.1972 and dismissed the appeal to that extent. The finding in respect of validity of the will (dated 30.8.1974) was, however, set aside and appeal was allowed to that extent. Consequently, a decree for possession to the extent of 1/4th share of the land left by Dhan Singh deceased was passed in favour of the plaintiff and against the defendants. Since both sides felt aggrieved with the verdict of the first appellate court, the plaintiff filed second appeal (R.S.A. No. 1532 of 1986) against the verdict of first appellate court to the extent it held the consent decree as valid and defendants filed second appeal (R.S.A. No. 789 of 1986) challenging that part of the first appellate court decree vide which the will was held as invalid.
7. Since both appeals arise out of the same judgment, the same are being disposed of by a common judgment.
8. Arguments addressed by the learned Counsel for the parties have been heard and the evidence on record has also been carefully perused.
9. At the outset, it may be stated that the trial court had rightly held the suit as time-barred. It was basically a declaratory suit which could be filed within three years from the date of accrual of cause of action which, in this case, was the date of passing of decree and that of execution of the will viz. 30.5.1972 and 30.8.1974 respectively. But, the suit was filed on 27.4.1981 i.e. long after three years from the accrual of cause of action and was, therefore, time-barred. Infact, on similar allegations, she had filed a suit in the year 1976 also which was dismissed. Therefore, she could not even claim that she had filed the present suit within three years of acquiring the knowledge of the decree or / and the will. The prescribed period of three years, even if it was counted with effect from the year of the filing of the earlier suit viz. 1976, had expired long before the filing of this suit. It may also be mentioned that even if, for the sake of arguments, the impugned decree was considered to be null and void (though it is not), as is the case of plaintiff, it was required to be declared as such by the court, in view of dictum of law laid down by the Apex Court in State of Punjab v. Gurdev Singh and Anr. . Thus, seen from any angle, the suit was clearly time-barred.
10. No plausible reasons were given by the first appellate court while upsetting the finding of the trial court that the will was validly executed. The scribe of will, DW2 Collector Singh, and one of its attesting witnesses, DW3 Sadhu Singh, had duly proved its execution by the deceased (Dhan Singh) and also testified that the executor was a prudent man, at that time. Infact, none other than Bhagirthi plaintiff herself had admitted the execution of the will by her father (Dhan Singh), in her statement, Ex.D2, recorded in her previous suit No. 363 of 1976. It not being the case of either party that Dhan Singh had executed more than one will, the plaintiff was bound by her said admission, and as such, the finding of trial court regarding the will being valid, has to be restored, after setting aside the finding of the first appellate court which was to the contrary.
11. The ancestral nature of the land does not appear to have been contested before the first appellate court, as there is no reference in its judgment, to that effect. Even otherwise, Dalip Singh defendant himself admitted in cross examination, as DW4, that the suit land had come to his father, Dhan Singh, from his grand-father, Surat Singh, and he also described the suit land as "mooltor" which, as clarified by DW2 Collector Singh (in cross-examination), is the land which is ancestral and is inherited by the owner from his father. The suit land was, thus, clearly ancestral in the hands of Dhan Singh.
12. The validity of the impugned consent decree dated 30.5.1972 passed in suit No. 232 of 1972 was upheld by both the courts below, by recording a concurrent finding in this regard, and no plausible reason for upsetting the same, was pointed out. The same is, therefore, affirmed but with the modification that, in view of the mandate of the Apex Court in A.I.R. 1996 Supreme Court 196, Bhoop Singh v. Ram Singh Major and Ors., this decree is required to be compulsorily registered, as it purports to create the right of the concerned defendants, in the land of Dhan Singh, for the first time. They would, therefore, have to get it registered, as per the law, before they can derive any right in the land, on its basis. Accordingly, the finding of the first appellate court on issue No. 4 is modified to this extent.
13. The plaintiff claimed herself to be Dhan Singh's daughter. She appeared in the witness box, as PW3, but it was no where suggested to her, on behalf of the defendants who are her brothers, that she was not so viz. the daughter of Dhan Singh. Even to PW1 Aflatoon, who also testified about her being the daughter of Dhan Singh, no such suggestion was put. Therefore, on the basis of this evidence, which finds corroboration from the birth certificate, Ex.P1, also, the first appellate court rightly held her to be the daughter of Dhan Singh.
14. No other argument was addressed.
15. In view of the above discussion, the regular second appeal bearing No. 1532 of 1986 shall stand dismissed and the other, bearing No. 789 of 1986, shall stand allowed. Resultantly, the suit shall stand dismissed in respect of not only the judgment and decree of suit No. 232 of 1972 but also with regard to the impugned will.