Punjab-Haryana High Court
Gurdip Singh vs Arjan Singh And Ors. on 3 September, 1991
Equivalent citations: I(1993)DMC388
JUDGMENT G.C. Garg, J.
1. This second appeal is at the instance of the plaintiffs.
2. Gurdip Singh and Sukhchain Singh filed a suit for declaration that they were the owners in possession of the land measuring 79 Kanals 11 Marias situated in village Agwar Ralhan, Tehsil Jagraon, District Ludhiana, as per the Jamabandi for the year 1977-78 on the basis of a registered Will dated 17.8.1972 executed by Sunder Singh in their favour. In the alternative it was prayed that a decree in their favour be passed restraining the defendants from dispossessing them from the suit land except in due course of law. It was pleaded that defendant No. 1 had earlier filed a suit against the plaintiffs on 18.10.1979 claiming half share in the land in dispute on the basis of a registered Will dated 9.1.1959 allegedly executed by Sunder Singh in favour of defendants No. 1 and 2, his sons. The plaintiffs had contested that suit by pleading the Will of Sunder Singh dated 17.8.1972 in their favour. That suit was decided by the Subordinate Judge, Jagraon and the two Wills alleged to have been executed py Sunder Singh dated 9.1.1959 and 17.8.1972 were disbelieved. The suit was dismissed with the observation that the estate of Sunder Singh will devolve, upon his natural heirs in accordance with the provisions of Hindu Succession Act. The appeal filed by the plaintiffs who were defendants in the earlier suit against the judgment and decree of the Subordinate Judge was dismissed being not maintainable. It was further pleaded that after the decision of the appeal in the previous suit a mutation was sanctioned in favour of the natural heirs on 22.6.1982, and thus Arjun Singh was trying to take forcible possession of 1/4th share in view of the mutation. Hence a suit for declaration as the mutation had cast a cloud on their rights.
3. The suit was contested by defendants No. 1 and 4 to 7 by filing a joint written statement. It was pleaded that the suit was barred by principle of res judicata and that the plaintiffs were estopped by their act and conduct in filing the present suit. The execution of the Will by Sunder Singh in favour of the plaintiffs was denied.
4. On the pleadings of the parties the following issues were framed :-
(1) Whether Sunder Singh deceased had executed a registered Will dated 17.8.1972 in favour of the plaintiff ? OPP.
(2) Whether plaintiff No. 2 is not a minor. If so its effect ? OPP.
(3) Whether the suit is not properly valued for the purpose of Court fee ?
(4) Whether the plaintiffs are estopped by their act and conduct from filing of the suit ? OPD.
(5) Whether the plaintiffs are entitled for the injunction prayed for?
(6) Relief.
(2-A) Whether the plaintiffs are debarred from taking the pleas of Will dated 17.8.72 alleged to be executed by Sunder Singh deceased, by the principle of res judicata ? OPD.
(5-A) Whether deceased Sunder Singh executed a Will dated 9.1.59 registered on 24.1.59 in favour of the defendants No. 1 and 2?OPD.
5. The Trial Court found issue No. 1 in favour of the plaintiff by 'holding that the Will Exhibit P-l had been duly proved to be a genuine document. Issue No. 2-A was found against the defendants by holding that the findings regarding the Will dated 17.8.1972 in the previous suit did 'hot operate as res-judicata in the present suit and that the genuineness and Validity of the Will was required to be determined afresh independently. Under Issue No. 5 it was found that the plaintiffs were not estopped by their act and conduct from filing the suit. Under Issue No. 5-A it was found that the findings recorded in the previous suit regarding validity of the Will dated 9.1.1959 had become final and could not be reagitated in the present 'suit. As a result of the above findings, the suit was decreed.
6. Feeling aggrieved against the judgment and decree of the Trial Court, Arjun Singh, defendant No. 1 filed an appeal which was ultimately 'decided by the learned Additional District Judge, Ludhiana. In appeal the finding as recorded by the trial Court under Issue No. 2-A was reversed by holding that the plaintiffs were debarred from taking a plea that Sunder Singh had executed a valid Will in their favour as the previous finding would operate as res-judicata. Finding recorded by the Trial Court under issue No.l regarding the validity of the Will dated 17.8.1972 was also reversed. As a result of the aforesaid two findings the appeal was partly allowed, judgment :and decree of the Trial Court was set-aside and instead passed a decree for permanent injunction in favour of the plaintiffs and against the defendants that they will not be dispossessed from the suit land except in the course of law as they were found to be in possession of the land and that the property of Sunder Singh will devolve upon the natural heirs in accordance with the provisions of Hindu Succession Act. It is against this judgment and decree passed by the lower Appellate Court that the present appeal has been filed.
7. Learned Counsel for the appellant assailed the finding as returned by the lower appellate Court under Issue No. 2-A and contended that the finding recorded in the previous suit about the validity of the Will dated 17.8.1972 would not operate as res judicata. In order to appreciate the contention of the learned Counsel it is necessary to notice the issues framed in the suit filed by Arjan Singh against the present plaintiffs and Sarwan 'Singh relating to this very property, which are reproduced below :-
(1) Whether Sunder Singh deceased executed a vaild Will dated - 9.1.1959 in favour of the plaintiff and defendant No. 3 PIfso its effect? OPP.
(2) Whether Sunder Singh deceased executed a vaild Will dated ,,: 17.8.1972 in favour of defendant Nos. 1 and 2 ? OPD.
8. The validity of the Will dated 17.8.1972 was examined by the 'Court'in the'earlier suit and it was held that the Will was shrouded by suspicious circumstances and had not been duly proved. In the present case also there is an issue as reproduced above, whether Sunder Singh deceased executed a registered Will dated 17.8.1972 in favour of the plaintiffs. Learned Counsel for the plaintiffs in support of his submission relied upon Sungat son of Rulia etc. v. Ram Kumar son of Chandgi, 1986 Simla Law Journal, 584.
In this case a suit was earlier tiled against Ram Kumar, for possession of a house that the defendant had taken the house on rent and the tenancy had been terminated. The suit was contested. The ownership of the plaintiff was denied. The allegation of tenancy was also denied. The plaintiff was, however, held to be the owner and that the defendant was a tenant under him. However, the suit was dismissed for want of a requisite notice terminating tenancy. In the subsequent suit filed by the same plaintiff against the same defendant it was argued that the finding of ownership of the plaintiff and tenancy of the defendant over the house in dispute was established in view of the earlier judgment between the parties and the finding would be res-judicata between the parties. The contention was negatived in appeal on the ground that the finding in the earlier suit did not operate as res judicata, as defendant had no right to file an appeal. It is on the basis of these observations, the learned Counse contended that in the present case also the earlier suit filed by Arjan Singh had been dismissed though the finding on issue No. 2 had been returned against the defendants. They had no right of appeal against the judgment and decree of the Trial Court dismissing the suit of Arjan Singh. Learned Counsel further contended that the defendants in any case filed an appeal against the findings recorded under Issue No. 2 by the Trial Court but the appeal was dismissed by the learned Additional Distict Judge by order dated 26.9.1981 being not maintainable, and thus the finding earlier recorded as to the validity of the Will dated 17.8.1972 did not operate as res judicata in the present suit and the conclusion arrived at by the lower appellate Court was wrong.
9. The learned Counsel also placed reliance on Tara Singh v. Shakuntla, AIR 1974 Rajasthan, 21, This was a case under the Hindu Marriage Act and it was observed that merely because a finding of the Court on one point in proceedings under Section 9 of the Act instituted by the wife was against the husband, the husband could not be said to have been adversely affected by it and in law he could not be said to be bound by such a finding as the ultimate result was in his favour and he was not entitled to file an appeal. Reliance was also placed on Smt. Tara Bai Mehta and Ors. v. Union of India, AIR 1971 Cal. 225 and Smt. Ganga Bai v. Vijay Kumar and Others, AIR 1974 S.C. 1126. It is not necessary to discuss the latter two caseg as these have been noticed by this Court in a later judgment reported as Malkiat Kaur v. Bant Singh and Others (1988) 3 Punjab Legal Reports and Statutes, 25, on which judgment strong reliance has been placed by the learned Counsel for respondents.
10. In Malkiat Kaur's case (supra), the dispute was whether the judgment and decree passed by the trial Judge in the suit filed by Hakam Singh would operate as res judicata regarding the Will dated 30.1.1969 in favour of Bant Singh plaintiff and the Will dated 4.4.1969 in favour of Malkiat Kaur, defendant or finding with respect to validity of the respective Wills could be gone into afresh. It was contended that the suit of Hakam Singh had been dismissed and the defendant had no right of appeal against a landing returned on an issue against her when the ultimate decree was in her favour and thus a finding on an issue amongst co-defendants would not operate as res judicata between co-defendants in subsequent proceedings. This contention was not accepted. It was held that the defendant had a right of appeal against the finding returned against her being the aggrieved person. It was further held that even otherwise she was estopped from reasserting her Will being valid when it had been found in judicial proceedings by a Court of competent jurisdiction to be a fictitious Will and in case the principles of estoppel and res judicata are involved, it with give rise to contrary judgments which would be against the principles of consistency in findings by the judicial process. Other judgments relied upon by the learned Counsel for the parties were also considered in Malkiat Kaur's case (supra). In the present case the validity of the Will dated 17.8.1972 was in question in the earlier suit between the parties and a specific issue had been framed. The onus of this issue was on the defendants. The parties led evidence and a finding was returned that the Will was shrouded by suspicious circumstances and had not been duly proved on the record. This finding, in my view, will operate as res judicata between the parties. The plaintiff in the earlier suit could not have been granted a decree for joint possession as prayed by him in the presence of Issue No. 2 even if the validity of the Will dated 9.1.1959 was found to be in his favour till a specific finding had been recorded on Issue No. 2 rejecting the Will. If the Will dated 9.1.1959 had been accepted to have been validly executed, and it was also found that the Will dated 17.8.1972 had been duly executed: the suit could not be decreed in view of the fact that the subsequent Will would have operated. It was thus absolutely necessary to determine the validity of the Will dated 17.8.1972 in the earlier suit.
11. After determining the validity of the two Wills and after rejecting both the Wills, a decree was passed dismissing the suit. It was said that since the two Wills executed by Sunder Singh had not been proved, his estate would devolve on natural heirs in accordance with law. Thus the decree was that the estate of Sunder Singh shall devolve on his natural heirs in terms of the provisions of Section 8 of the Hindu Succession Act. Once a finding had been recorded on issue No. 2 and it was held that the estate of Sunder Singh will devolve on his natural heirs, in my view, the present plaintiff-appellants were certainly aggrieved by the decree passed in the earlier suit and they had a right of appeal. The mere fact that they filed an appeal and the same was dismissed by the Additional District Judge, Ex. D2, being not maintainable, would not in my view, give a right to the plaintiffs to contend that the appeal was not competent. It was open to them to file a further appeal to the High Court. Simply because they felt content with the order of the Additional District Judge dismissing the appeal being not maintainable, would not afford them a right now to contend that the finding earlier recorded would not operate as res judicata. As already observed, it was absolutely necessary to determine the validity of the two Wills executed in favour of the plaintiff and the defendants in the earlier suit in order to grant relief to Arjan Singh. Since Issue No. 2 was determined and the suit was dismissed, the affected defendant had a right of appeal. The present plaintiffs were thus certainly aggrieved persons against the finding recorded under issue No. 2 holding that the Will in their favour was invalid. There cannot be any dispute about the proposition that an aggrieved person has a right of appeal.
12. I have gone through the earlier judgment, Exhibit D-3, between the plaintiffs and Arjan Singh wherein a categorical finding has been recorded with respect to the validity of the Will dated 17.8.1972 in favour of the plaintiff by holding that it was shrouded by suspicious circumstances and had not been duly proved. In order to give relief to Arjun Singh in the suit filed by him it was absolutely necessary to determine the validity of the Will in favour of the present plaintiffs and without going into the validity of this Will the suit of the plaint in's could not be decreed.
13. During the course of judgment in Malkiat Kaur's case (supra), it was observed as under :-
"One of the objects of the principle of res judicata is to obviate the possibility of contradictory verdicts by two or more Courts with respect to the same facts. The basic test for determining whether an earlier decision operates as res judicata or not, is whether two inconsistent findings could be there, if the doctrine of res judicata or constructive res judicata is not applied. Neither the absence of right of appeals wipes out the findings nor affects their finality. The learned Counsel for ti.e respondent has relied upon Hari Prashad v. Mangat Ram and Another, 1985 Rev. L.R. 232, in which it has been observed :
It is will-settled that a party against whom a finding is recorded has got a right of appeal even though the ultimate decision may be in his favour if the finding can operate as res judicata in a subsequent suit or proceeding."
The right of appeal was also dependent on the fact whether an earlier decision operated as res judicata inter se the parties. The object of the law being to give finality to a lis and not to bring into existence two contrary findings on the same fact by competent Courts, the judgment given earlier on the issue operates as res judicata. It can also be said that earlier finding operates as an estoppel. The learned Counsel further relied upon Gita Ram Kaisi v. S. Prithvi Singh and Others, AIR 1956 Punjab 129. It has been observed in the said judgment in the following terms :
"But a question may well be asked what are the circumstances in which a person may claim that a judgment rendered in an action to which he was a party is not "res judicata' as to the facts therein decided. The answer is simple and clear. A party to an action can escape the binding force of a former adjudication between the same parties only if he can satisfy the Court that he had no right to be heard in the earlier case or that he had no control over the proceedings."
It was further observed :-
"A 'Proforma' defendant is joined as a party in a suit because his presence is necessary in order to enable the Court effectually and completely to adjudicate upon the matters in controversy between the parties. He does not enjoy any special rights or privileges which are not avail to others and is as bound by the decision of the Court as the other parties to the litigation."
14. In view of the law laid down in Malkiat Kaur's case (supra) there is no escape from the conclusion that the appellants had a right of appeal against the finding returned against them being the aggrieved persons and once that is so, the finding recorded about the validity of the Will dated 17.8.1972 in the earlier suit would operate as res judicata. In the earlier case, a categorical finding had been recorded in the judgment Exhibit D-3 and, therefore, the said judgment would operate as res judicata in the present case.
15. In view of what has been stated above, I find no merit in the contention of the learned Counsel for the appellant and affirm the finding returned by the lower appellate Court under Issue No. 2-A.
16. The learned Counsel for the appellant half-heartedly challenged the finding recorded by the lower appellate Court under Issue No. 1. The appellate Court had found the Will to be shrouded by suspicious circumstances and the testator being 82 years of age at the time of execution of the alleged Will could not be said to have independent mind to dispose of his property. Doubt was also cast on the statement of the only attesting witness produced in the case. The learned Counsel took pains to take me through the statements of the witnesses with a view to demonstrate that the Will was natural and the circumstances pointed out by the learned lower appellate Court did not effect the genuinity of the Will. I find no merit in this contention of the learned Counsel as Will. Nothing could be pointed out by the learned Counsel which could warrant an interference with the finding recorded by the Appellate Court.
17. For the reasons recorded above, the appeal fails and is dismissed. The parties shall bear their own costs.