Punjab-Haryana High Court
Rup Singh And Ors. vs Baltej Singh on 29 July, 2005
Equivalent citations: AIR2006P&H55, AIR 2006 PUNJAB AND HARYANA 55, 2006 A I H C (NOC) 55 (P&H), (2006) 40 ALLINDCAS 223 (P&H), 2006 (1) HRR 64, 2006 (40) ALLINDCAS 223, 2006 HRR 1 64, (2006) 1 PUN LR 161, (2006) 3 CURCC 141, (2006) 1 CURLJ(CCR) 310, (2005) 4 RECCIVR 780, (2006) 1 CIVILCOURTC 25, (2005) 3 LANDLR 654
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. Mehar Singh and Uttam Singh, defendants Nos. 1 and 2, respectively, are the appellants before this Court. The said defendants had purchased the land measuring 7 kanals 16 marlas each through two sale deeds dated December 29, 1977 from Jarnail Singh, defendant No. 3 father of plaintiff Batlej Singh. The said two sale deeds were challenged by the plaintiff by filing a suit for declaration that the said sale deeds were illegal, void and without legal necessity and ineffective qua the rights of the plaintiff. It was claimed by him that the suit land was ancestral, coparcenary and joint Hindu Family Property in the hands of Jarnail Singh and, as such, the same having been sold without legal necessity and even without consideration, the said sales did not bind the plaintiff in any manner.
2. The suit filed by the plaintiff was dismissed by the learned trial Court. On an appeal filed by the plaintiff, the judgments of the learned trial Court was reversed. Consequently, his suit was decreed.
3. The defendants have now approached this Court through the Regular Second Appeal.
4. Certain relevant facts be noticed :
Baltej Singh filed a suit for declaration that two sale deeds dated December 29, 1977 executed by defendant No. 3 in favour of defendants No. 1 and 2, respectively, were illegal, void, without consideration and without legal necessity and were not binding upon the rights of the plaintiff. It was claimed by the plaintiff that the suit land was ancestral, coparcenary and Joint Hindu Family property in the hands of Jarnail Singh and that Jarnail Singh had sold the said land but the said sale deeds were without consideration and without any legal necessity. It was alleged by the plaintiff that Jaranil Singh, defendant No. 3 (father of the plaintiff) was a man of bad habits and was a big spendthrift and was not in a position to look after his own betterment and to manage his family affairs properly. He was spending money for taking liquor and opium etc. Claiming that the plaintiff and the defendants were governed by Hindu Law in the matters of succession and also that Jarnail Singh could not sell the suit land without consideration and without legal necessity, therefore, the present suit was filed.
5. The suit was contested by defendants No. 1 and 2. In their written statement, they denied the fact that the parties were governed by Hindu law. It was also pleaded that the sales in question were for consideration and for legal necessity. The said sales were also claimed to be an act of good management. The defendants pleaded that Jarnail Singh had three brothers. Jarnail Singh along with his brothers succeeded to the property of their maternal grand parents and mother in village Kauni Tehsil Faridkot. Everyone of them had succeeded to the extent of about 15 killas each and thereupon all the brothers had shifted to village Kauni and were living there for the last 20 years. It was further stated that the entire land of all the brothers in village Lohke Kalan was under mortgage for Rs. 12,000/-. Jaranil Singh was not deriving any benefit from the said land. Although mutation of the mortgage had not been attested but the land was in possession of the mortgagee. The share of the mortgage amount qua Jarnail Singh was Rs. 3,000/-. Accordingly it was claimed that the sale deeds, each for Rs. 6,000/- in favour of defendants No. 1 and 2 had been executed. Out of the aforesaid Rs. 3,000/-each, were paid before the Sub-Registrar. Jaranil Singh had represented that he required the money for purchase of land in village Kauni and the defendants felt satisfied with the said representation. The defendants further stated that they had executed pronotes for Rs. 4,500/- each in favour of Jarnail Singh, defendant. Rs. 3,000/- represented the sale consideration, which had been recited in the sale deed as having been received at home' and Rs. 1,500/- represented the mortgage amount, since Jarnail Singh had represented that he would pay the mortgage amount himself. The pronotes were executed on the same day and attested by the same witness who had attested the sale deed. (These facts have been noticed as the pleadings in the written statement show that the facts pleaded qua defendant No. 1 applied with regard to the sale in favour of defendant No. 2 also).
6. During the course of proceedings before the learned trial Court, the parties led their evidence. The plaintiff himself appeared as PW 1 and produced two more witnesses, namely, Bhag Singh as PW 2 and Gurnam Singh, Patwari as PW 3. Some documentary evidence was also produced by the plaintiff. In contrast, the defendants Nos. 1 and 2 appeared as their own witnesses as DW 2 and DW 3. They produced DW 1, Ram Chand who was working as the petition writer. The said petition writer proved the two pronotes as Ex. D1 and Ex. D2 and the sale deeds Ex. D3 and Ex. D4. They also produced Tara Singh as DW4, one of the attesting witnesses of the documents.
7. The learned trial Court, on the basis of the appreciation of the evidence, held that neither it was proved that the plaintiff and Jarnail Singh ever constituted a Joint Hindu Family or coparcenary nor the property in dispute was shown to be coparcenary, ancestral or Joint Hindu Family property in the hands of Jarnail Singh. It was further held that the sale deeds in question had been executed for consideration. On the basis of the aforesaid facts, the suit filed by the plaintiff was dismissed.
8. The plaintiff took up the matter in appeal. The learned first appellate Court reversed all the findings recorded by the learned trial Court. It was held that the plaintiff and defendant, No. 3 Jarnail Singh constituted a Joint Hindu Family. It was also held that the property in question was coparcenary property in the hands of defendant No. 3. Further, it was held that the sale deeds Ex. D3 and Ex. D4 were not shown to be for consideration, nor any legal necesity was proved. Accordingly, the appeal filed by the plaintiff was allowed and consequently the suit filed by him was decreed.
9. The defendants have now approached this Court through the present appeal.
10. I have heard Shri Vikas Bahl, the learned Counsel for the defendant-appellants and, Shri Subhash Aggarwal, the learned (counsel) appearing for the plaintiff-respondent and with their assistance have also gone through the record of the case.
11. At this stage, it may be noticed that; the present regular second appeal had been filed in the year 1981 under the provisions of Section 41 of the Punjab Courts Act, 1980. A full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab & Haryana 137 had taken a view that in view of the aforesaid local law (Punjab Courts Act), the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court. Accordingly, no substantial questions of law were framed nor the aforesaid regular second appeal was admitted on any such substantial questions of law. However, the Hon'ble Supreme Court of India in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs. has held that after the amendment of the Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act i.e. Code of Civil Procedure and, therefore, was to be ignored and, therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure on a substantial question of law.
12. In view of the law laid down by the Apex Court in Kulwant Kaur's (supra), during the course of arguments, the following substantial questions of law were found to have arisen in the present regular appeal :
(a) Whether there being no material available on the record to show that the plaintiff and defendant Jarnail Singh were joint in mess and living, could it be inferred that they constituted a Joint Hindu Family?
(b) Whether there being no material on the record to show that any Joint Hindu Family was ever constituted between the plaintiff and Jarnail Singh, defendant, any such inference could be drawn?
(c) Whether the plaintiff has led any evidence to show that the property in question was Joint Hindu Family, coparcenary or ancestral in the hands of Jarnail Singh?
(d) Whether the findings recorded by the learned first appellate Court being based upon complete misreading of pleadings and evidence on the record and the said findings recorded being judicially perverse, are legally sustainable?
13. Shri Vikas Bahl, the learned Counsel appearing for the appellants has vehemently argued that there was no material available on the record to show that the plaintiff had ever constituted a Joint Hindu Family or coparcenary with his father defendant Jarnail Singh. Shri Bahl has specifically drawn my attention to the statement of plaintiff who had appeared as PW 1. It has been pointed out that in his entire statement there has been not even a single line uttered by him to support the aforesaid fact. Similarly my attention has been drawn by the learned Counsel to the statement of PW 2 Bhag Singh also, who is real brother of Jarnail Singh. Even the aforesaid witness had not stated a word about the said fact. It has further been argued by the learned Counsel that the learned first appellate Court had completely misread and mis-interpreted the written statement filed by the defendants to come to the conclusion that there was a discrepancy with regard to the payment of consideration, as detailed out in the sale deeds and the plea taken in the written statement. The learned Counsel has also drawn my pointed attention to para No. 4 of the written statement to show that the specific case set up by the defendants in the written statement was that Rs. 3,000/- each had been paid by the defendants out of the sale consideration before the Sub-Registrar. However, it had been stated by the defendants that for the balance sale consideration, which had been indicated to have been paid at home, two pronotes had been executed. The said pronotes were each for an amount of Rs. 4,500/-; Rs. 3,000/- being the amount of sale consideration, whereas, Rs. 1,500/- were qua the share of each defendant towards the mortgage amount. Thus, it has been explained by Shri Bahl that total amount of sale consideration constituted Rs. 6,000/- along with Rs. 1,500/-, being the mortgage amount. At this stage, Shri Bahl had also referred to the statement of Tara Singh, DW 4, who had stated that the amount of mortgage money had not been indicated in the sale deeds and was to be paid separately. On account of the aforesaid contentions, the learned Counsel has argued that the findings recorded by the learned first appellate Court were based upon no evidence and also on misreading of pleadings and; therefore, being judicially perverse are liable to be set aside.
14. On the other hand, Shri Subhash Aggarwal, the learned Counsel for the respondents, with equal vehemence, has contended that the suit had been filed by the plaintiff specifically claiming that he constituted a Joint Hindu Family and the suit property was coparcenary, ancestral and Joint Hindu Family property in the hands of Jarnail Singh. The learned Counsel has accordingly argued that the said facts were clearly proved on the record and findings in this regard were recorded by the learned first appellate Court. The learned Counsel has, thus, claimed that no interference was called for in the present regular second appeal.
15. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties.
16. In the plaint filed by the plaintiff, he had made the following averments :
That the plaintiff and Jarnail Singh vendor form coparcenary and they are members of the coparcenary, Joint Hindu Family.
That the suit land is a coparcenary, Joint Hindu Family property and ancestral property between the plaintiff qua defendant Jarnail Singh.
That defendant Jarnail Singh is alleged to have sold the land mentioned in the heading of the plaint to defendant No. 1 and 2. But the said sale deeds are without consideration without legal necessities and they are void and illegal and have no effect on the right of the plaintiff on the suit land.
17. As noticed above, the defendants in the written statement had denied the said averments. It was specifically pleaded that the land of all the brothers including Jarnail Singh was under mortgage for Rs. 13,000/-and share of the mortgage money for Jarnail Singh came to Rs. 3,000/- and the sale deeds were executed each for Rs. 6,000/-. Out of the total sale consideration Rs. 3,000/- each were paid by both the defendants before the Sub-Registrar in cash. For the remaining amount, which had been indicated as having been paid at home, two separate pronotes were executed for Rs. 4,500/- each. The amounts in the pronotes reflect an amount of Rs. 3,000/- out of the sale consideration and Rs. 1,500/- representing the mortgage amount. Thus, the mortgage amount in the two pronotes would be Rs. 3,000/- i.e.; share of Jarnail Singh and Rs. 3,000/- each two would be the amount which had been indicated in the two sale deeds as having been paid at home. It is, thus, apparent that there was absolutely no inconsistency in the plea taken by the defendants in the written statement and the recital in the sale deeds. It appears that the learned first appellate Court had completely misinterpreted the pleadings contained in the written statement and on that basis had held that no, amount had been paid before the Sub-Registrar. As a matter of fact, as detailed out in the written statement and also stated specifically by various witnesses of the defendants, an amount of Rupees 3,000/- was paid in cash in each of the sale deeds before the Sub-Registrar. Even otherwise, there is absolutely no reason to disbelieve the recital contained in the sale deeds in that regard. The plaintiff has not produced any official from the office of the Sub-Registrar to show that the said recital was incorrect in any manner. In the absence of any such evidence on behalf of the plaintiff, it could not be held at all that the sale deeds in question were not for consideration.
18. With regard to the fact as to whether the plaintiff had constituted a Joint Hindu Family or a coparcenary with his father Jarnail Singh, it is apparent from the entire evidence led by him that no effort had been made by the plaintiff at all to prove the aforesaid fact. On the basis of mere bald plea taken by the plaintiff in that regard, no inference could be drawn without there being any supportive evidence, the factum of the plaintiff having constituted a coparcenary or a Joint Hindu Family with his father Jarnail Singh was a question of fact. The same was required to be proved by leading cogent evidence. The learned first appellate Court has completely fallen into error when it returned finding in favour of the plaintiff on the aforesaid fact. Apparently, the aforesaid finding has been recorded by the learned first appellate Court without there being any material available on the record. Thus, the aforesaid finding of fact is apparently vitiated and not legally sustainable and can be held as judicially perverse.
19. At this stage, it may also be noticed that the learned first appellate Court had placed reliance upon Jamabandi Ex. P9 to hold that since the property in question had originally belonged to Jiwan Singh and on his death had devolved upon his song Jarnail Singh, Chanan Singh, Gurdial Singh and Bhag Singh, therefore, Jarnail Singh having 1/4th share, the property would be deemed to be Joint Hindu Family property. Again the learned first appellate Court had returned the aforesaid finding without any basis whatsoever. Once the very existence of Joint Hindu Family is not proved nor it has been shown that there was any coparcenary ever constituted between the plaintiff and his father, the question of property being Joint Hindu Family property or coparcenary property would not arise. The plaintiff has not led any evidence to show that he was joint in mess or living with his father Jarnail Singh. No evidence has been led by him to show as to in what manner the property in dispute had devolved upon his father Jarnail Singh from his grand father Jiwan Singh i.e. by way of any Will or otherwise.
20. Although in view of the aforesaid findings recorded above, it would not be necessary to go into the question of legal necessity, but still it would be relevant to notice that in the written statement, the defendants had taken a specific plea that Jarnail Singh, vendor and the aforesaid vendees are near collaterals. It may also be noticed that the entire land of Jarnail Singh and his brothers in village Lohke Kalan was under mortgage for Rs. 12,000/- and possession was with mortgagee. Jarnail Singh was not deriving any income from the same. He along with his brothers had settled in the village of his maternal grand parents, where the brothers had succeeded to a considerable chunk of land. In these circumstances, the evidence led by the defendants that Jarnail Singh wanted to sell the land in village Lohke Kalan to purchase some other land cannot be disbelieved. The facts and circumstances of the land being mortgaged and the vendor residing in some other village would also show that the said act of sale was, in any case, an act of good management by the vendor.
21. In view of the aforesaid discussion, it is apparent that the learned first appellate Court has returned some of the findings on issues No. 1 and 2 on the basis of no evidence and the findings on issue No. 3 had been recorded on the basis of misinterpretation and misreading of the pleadings of the parties and the evidence led by them, Thus, the findings recorded by the learned first appellate Court are wholly vitiated on that account.
22. Accordingly, the substantial questions of law (a), (b), (c) land (d) are decided in favour of the appellants and against the plaintiff-respondent Consequently, the present appeal is allowed. The judgment and decree of the learned first appellate Court are reversed and that of the learned trial Court are restored. As a result thereof, the suit filed by the plaintiff shall stand dismissed. There shall be no order as to costs.