Punjab-Haryana High Court
Raghbir Singh And Ors vs Hari Singh And Anr on 10 October, 2014
Equivalent citations: AIR 2015 (NOC) 39 (P.&H.)
Author: Hemant Gupta
Bench: Hemant Gupta
RSA No.959 of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.959 of 1997 (O&M)
Date of decision:10.10.2014
Raghbir Singh and others ....Appellants
VERSUS
Hari Singh and another .....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. Jagmohan Singh Chaudhary, Senior Advocate with
Mr. Faryad Singh Virk, Advocate
for the appellants.
None for the respondents.
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HEMANT GUPTA, J.(Oral)
The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned trial Court on 24.03.1992 as affirmed by learned first Appellate Court on 12.10.1996.
Mangta Singh (since deceased) now represented by the present appellants filed a suit for declaration challenging the decree dated 24.01.1983 in a suit filed by Gurdev Singh against him. The said decree was challenged on the ground that suit was based on wrong pleadings and is ineffective on the rights of the plaintiffs and the defendants have got no right, title or concern with the agricultural land comprising in Khasra No.133 (4-1), 135(4-14), 138(6-0), 139(0-5), 140(4-5), 141(2-16), 142(7-14) measuring 29 bighas 15 biswas.
It is asserted that defendant was lessee but the defendant taking undue advantage of old age of plaintiff filed suit for declaration initially by Gurdev Singh in which, subsequently Hari Singh was GULATI DIWAKER 2014.10.14 13:50 I attest to the accuracy and authenticity of this document RSA No.959 of 1997 2 impleaded as plaintiff. In the said suit, the statement of Mangta Singh (since deceased) was recorded which led to decree dated 24.01.1983 on the basis of alleged family arrangement on 14.06.1980. It is asserted that defendants are neither related to the plaintiff nor constitute a Joint Hindu Family and therefore the decree could not be granted on the basis of consent. It is pleaded that plaintiff earlier filed a suit for possession which was dismissed as withdrawn on 08.10.1984 with permission to file fresh suit. The fresh suit was filed on 15.10.1984. Thereafter, the defendants executed a Panchayat Nama dated 19.01.1986 agreeing to pay a sum of Rs.4000/- in terms of previous agreement dated 02.09.1983 in respect of payment of maintenance amount and also amount due and payable as lease of the land.
In reply, it is asserted that defendant No.1-Hari Singh is owner of half share of the land and in possession of the same for the last 14-15 years. He had never paid any lease/Chakota to the plaintiff and never cultivated the land under the supervision of the plaintiff. The plaintiff voluntarily gave a statement admitting the claim of the plaintiffs in the earlier suit. It is also pointed out that plaintiff is brother of grandfather of defendant No.1 and father of defendant No.2. It is also asserted that defendants are ready to pay the maintenance allowance according to decision of Panchayat and that they had already paid the amount of maintenance to the plaintiffs.
On the basis of respective pleadings of the parties, the learned trial Court framed the following issues:-
1(a) Who are the legal heirs of Mangta Singh deceased? OPP-parties
1. Whether the plaintiff is owner of the suit land?OPP GULATI DIWAKER 2014.10.14 13:50 I attest to the accuracy and authenticity of this document RSA No.959 of 1997 3
2. Whether the decree dated 24.01.1983 is illegal, null and void etc. as alleged?OPP
3. Whether the suit is time barred? OPD
4. Whether the suit is even otherwise barred as alleged?OPD
5. Whether the plaintiff is entitled to the declaration prayed for?OPP Apart from the evidence on merits, the plaintiffs relied upon Will dated 10.12.1987 (Ex.PW4/1) of Mangta Singh (since deceased) in favour of his sons, the present appellants. The said Will is sought to be proved by examining PW8 Bhagat Singh, PW7 Document Expert Dewan K.S. Puri, and one of the legatees i.e. Raghbir Singh as PW9. The learned trial Court held that plaintiffs are proved to be legal heirs of deceased Mangta Singh (since deceased).
However on merits, it was found that Gurdev Singh filed a suit in which Hari Singh was impleaded as a party vide order dated 26.10.1982 (Ex.P16). The present plaintiff filed written statement dated 24.01.1983 (Ex.P13) admitting the claim of the plaintiffs in the earlier suit. The statement of Mangta Singh (since deceased) was recorded on 24.01.1983 (Ex.P2) and the judgment and decree (Ex.P19 and P20) was passed on the same date. Raghbir Singh, son of deceased Mangta Singh (since deceased), appeared in Court on the strength of Power of Attorney (Ex.P4) and deposed that decree was obtained by defendants by playing fraud on Mangta Singh (since deceased), telling him that this writing is regarding payment of Chakota at the rate of Rs.6000/- per year. The plaintiffs also produced the revenue record to prove that they were in possession of the suit land.
GULATI DIWAKER 2014.10.14 13:50 I attest to the accuracy and authenticity of this document RSA No.959 of 1997 4
On the other hand, the defendant Gurdev Singh appeared as his own witness as DW2 and deposed that no fraud was played on Mangta Singh (since deceased) and that half share of the suit land was given to him out of free will. Hari Singh-defendant No.1 also appeared as DW10 and corroborated the statement of DW2 Gurdev Singh. DW1 Sukhwant Singh, Advocate, who was counsel for Mangta Singh (since deceased) in a suit which led to decree dated 24.01.1983 was also examined. The pedigree table Ex.D41 was also produced by defendants to prove that Rai Singh was their common ancestor. DW3 Kishan Singh, the process server, was examined who proved that Mangta Singh (since deceased) was served vide summons Ex.D18. Thumb impressions of Mangta Singh (since deceased) on the written statement (Ex.P13) and statement (Ex.D2) and reply (Ex.P17) and report of Document Expert Dewan K.S. Puri (Ex.DW4/A) were relied upon as thumb impressions of the same person as that of the specimen thumb impressions of Mangta Singh (since deceased). Thus, it was found that the decree dated 24.01.1983 was suffered by Mangta Singh (since deceased) out of his free will, without any misrepresentation or taking any undue advantage.
On the basis of oral and documentary evidence in respect of execution of the documents handing over possession of the land to the defendants, the learned trial Court found that the decree dated 24.01.1983 has been suffered out of free will and without any misrepresentation. Appeal against the said judgment has been dismissed by the learned first Appellate Court. Exhibit-P1 is the agreement dated 02.09.1983, whereby Mangta Singh has agreed that he has given suit land to Gurdev Singh and Hari Singh on the GULATI DIWAKER 2014.10.14 13:50 I attest to the accuracy and authenticity of this document RSA No.959 of 1997 5 condition that defendants shall pay Rs.6000/- per year i.e. Rs.3000/- for the Kharif crop and Rs.3000/- for the Sauni crop. The electricity bills of tubewell and loan amount were to be paid by the defendants equally. Food, shelter and clothing were also to be provided to Mangta Singh, to be paid by the defendants. Such agreement was entered in the Register of Deed Writer which is Ex.P2. PW1 is Gurdit Singh, Document Writer Patiala, who proved that such agreement was written by him and same was thumb marked and signed after accepting them to be correct.
Earlier suit for possession dated 18.10.1983 was filed in which issues were framed on 08.10.1984 but the said suit was withdrawn to file a fresh suit vide Ex.D29. Another suit was filed by Mangta Singh (since deceased) on 10.10.1984 withdrawing the same vide statement Ex.D31 on 25.01.1986. Such suit was withdrawn consequent to execution of Panchayat Nama dated 19.01.1986 (Ex.P3). The defendant-Gurdev Singh also produced Will dated 01.09.1986 (Ex.D2) executed by Mangta Singh (since deceased) in his favour.
On the basis of pedigree table (Ex.D41), the plaintiff- Mangta Singh (since deceased) had handed over his land to the defendants and also executed agreement dated 02.09.1983 (Ex.P1) and Panchayat Nama dated 19.01.1986 (Ex.P3). Earlier two suits have been withdrawn by him. The entire conduct of the proceedings prior to filing of the present suit leaves no manner of doubt that Mangta Singh (since deceased) had suffered decree out of his free will. The findings of the Courts below are sought to be disputed on the ground that there is no family settlement as claimed in civil suit leading to decree dated GULATI DIWAKER 2014.10.14 13:50 I attest to the accuracy and authenticity of this document RSA No.959 of 1997 6 24.01.1983 and that common consent requires registration. Since the evidence on record proves the near relations of the parties and the fact that the Plaintiff has withdrawn his earlier suit after entering into compromise before the Panchayat leads to irresistible conclusion of the fact that the decree was voluntary and out of free will.
The learned first Appellate Court has decided two appeals on 12.10.1996. The appeal filed by one of the defendants Gurdev Singh i.e. RSA No.673 of 1997 stand dismissed for non-prosecution on 06.08.1997. The dismissal of the aforesaid appeal leads to merger of the judgment and decree by the Courts below with that of the High Court. That apart learned trial Court as well as the learned first Appellate Court has recorded concurrent findings of fact that the parties have common ancestor.
In view of the above, I find that there is no error in the findings of fact recorded by the Courts below which may warrant interference in the present Regular Second Appeal. No substantial question of law arises for consideration.
Dismissed.
(HEMANT GUPTA) JUDGE OCTOBER 10, 2014 'D. Gulati' GULATI DIWAKER 2014.10.14 13:50 I attest to the accuracy and authenticity of this document