Punjab-Haryana High Court
Jhandu (Since Deceased) Represented By ... vs Smt. Khajani And Others on 13 July, 2010
RSA No. 1747 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: July , 2010
1. RSA No. 1747 of 1987
Jhandu (since deceased) represented by his LRs
and another
...... Appellants
Versus
Smt. Khajani and others
...... Respondents
2. RSA No. 4788 of 2003
Surjan Singh
...... Appellant
versus
Subhash Chand and others
...... Respondents
3. RSA No. 4789 of 2003
Surajbhan
...... Appellant
versus
Subhash Chand and others
...... Respondents
4. RSA No. 4790 of 2003
Chanderbhan and others
...... Appellant
versus
Subhash Chand and others
...... Respondents
RSA No. 1747 of 1987 2
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr.Ashok Aggarwal, Senior Advocate with
Mr. Alok Jain, Advocate
for the appellant/s.
Mr.R.S.Mittal, Senior Advocate with
Mr. Jaswant Jain, Advocate and
Mr.P.R.Yadav, Advocate
for the respondent/s.
****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
These four appeals have been directed to be heard together. The essential facts are that one Jhandu son of Man Singh, Lila son of Ramji Lal, Lila son of Hardayal and Sheodhan son of Bala were co- owners of the property in dispute. As per the case set out, Jhandu ultimately purchased the entire share of co-sharers. Originally Jhandu filed Civil Suit No. 52 of 1979 in which he impleaded the legal representatives of Sheodhan and Lila son of Ramji Lal asserting that he had purchased their entire share. Lila son of Ramji Lal was proceeded against ex parte. Sheodhan had died by then and was represented by his two daughters. In the plaint the dates of the sale deeds were mentioned and copies thereof annexed therewith. Admittedly the first sale deed was dated 8.1.1959 but in the plaint the date 18.1.1955 was mentioned. The respondents(daughters of Sheodhan) denied that their father had ever sold the property to Jhandu. Their further specific stand was that their father was a rustic simpleton and taking advantage of his simplicity it was possible that Jhandu may have got the sale deed/s executed by producing some other person in place of Sheodhan. The RSA No. 1747 of 1987 3 following issues were framed:-
1. Whether the plaintiffs are owners in possession of the suit land?OPP
2. Whether the suit is barred by time?OPD
3. Whether the plaintiffs are estopped by their acts and conduct to file the present suit?OPD
4. What is the effect of not taking the plea of title in the partition proceedings?
5. Whether the sale deeds alleged in para No. 4 and 5 of the plaint are void?OPD
6. Relief.
The trial Court originally held under issue No.5 that the sale deeds had been proved to have been voluntarily executed by Sheodhan. However, while considering the first sale deed Ex.PW7/1 he held that Jhandu had not been able to link the numbers mentioned therein (pre- consolidation) with the numbers mentioned in the plaint(post consolidation) and dismissed the suit in its entirety(even against Lila son of Ramji Lal who had been proceeded against ex parte). Jhandu filed an appeal. It deserves to be mentioned here that with regard to the finding on issue no.5 no appeal/cross objections were filed by the respondents. The learned Lower Appellate Court considered the fact that while deciding issue No.1 against Jhandu the trial Court had not at all considered the other sale deeds. Consequently he remanded the case to redecide issue No.1 after considering the other sale deeds also and gave the parties one opportunity each to lead further evidence with a direction to the learned trial Court to give its report on Issue No.1. Even after reconsidering the matter the learned trial Court reiterated its finding on issue No.1 holding it against Jhandu. In appeal learned Lower Appellate Court upheld the said judgment and that is how the RSA No. 1747 of 1987 4 present appeal has been filed.
It needs to be mentioned at this stage that during the pendency of the first appeal the daughters of Sheodhan sold the property in dispute to respondents No. 4 to 8 and the said respondents were impleaded as such before the learned Lower Appellate Court itself. After the sale deed/s in their favour the respondents No. 4 to 8 filed a civil suit against respondents No. 1 and 2 praying that in the sale deed executed in their favour certain numbers had been omitted. Respondents No. 1 and 2 appeared and admitted the claim. By that time this Jhandu had given up some rights in some of the land in favour of his sons. Aggrieved by the addition of certain numbers in the suit filed by respondents No. 4 to 8 Jhandu and his two sons filed three suits again claiming that they were owners in possession of the land in dispute and that the decree suffered by respondents No. 1 and 2 in favour of respondents No. 4 to 8 did not affect their rights. Those suits were consolidated. The learned trial Court held that the sale deed dated 8.1.59 was not proved. He further held that the mutation in favour of Jhandu (No. 151 dated 15.9.60) was itself based on an order dated 30.3.1960 of the Consolidation Officer and, the said order not having been placed on record it could not be held that Jhandu and his sons had been able to specifically prove the sale in favour of Jhandu by Sheodhan. That judgment also having been affirmed in appeal the present three RSA Nos. 4788, 4789 and 4790 of 2003 have been filed.
In my opinion the main appeal which has to be decided is RSA No. 1747 of 1987. In case that appeal is allowed and a declaration is given that Jhandu had purchased the entire land of Sheodhan by the sale deeds Ex.P6 and Ex.P7 and Ex.PW7/1 then the subsequent appeals will also have RSA No. 1747 of 1987 5 to be allowed, since in that eventuality the decision on the validity of the sale deed/s in favour of Jhandu would be relevant and binding in the subsequent suits. In this connection reference may be made to Madhukar D. Shende v. Tarabai Aba Shedage reported as 2002(2) S.C.C. 85 wherein the Hon'ble Supreme court held as follows:-
"12. Shri Subrat Birla, the learned counsel for the plaintiff- appellant submitted that the above said decisions which are inter party would constitute res judicata for the purpose of the present suit and the finding that the will dated 22.9.1963 is a duly executed last will and testament of late Bhagubai could not have been re-agitated by the defendant-respondent in the present suit. On the other hand, Shri Bhasme, the learned counsel for the defendant-respondent submitted that the previous suit, though between the same parties, related to some other property and was based on landlord-tenant relationship and any finding recorded in the decision therein would not constitute res judicata in the present suit which is a title suit. We are not inclined in the facts and circumstances of this case, to weigh the admissibility and binding efficacy of the decisions rendered in the earlier suit on the doctrine of res judicata and holding the earlier decisions as conclusive between the parties. Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit. No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing. However, still it cannot be lost sight of that the earlier litigation was between the same parties wherein this very will was relied on by this very plaintiff in support of his title to the property in RSA No. 1747 of 1987 6 dispute therein. The plaintiff's right to sue based on this very will was claimed and asserted in the earlier suit and was upheld though denied by this very defendant. These facts and finding are recorded in the previous judgment and have relevance in the present suit. [Also see, Tirumala Tirupati Devasthanams v. K.M.Krishnaiah, (1998) 3 SCC 331 : 1998(3) RCR(Civil) 6 (SC)]. Thus away from res judicata the judgment given in the earlier suit is relevant piece of evidence under Sections 11,13 and 35 of the Evidence Act and has a material bearing on the controversy arising for decision in the present suit. This material aspect has been completely overlooked by the High Court and the courts below. A relevant and material piece of documentary evidence, of undoubted veracity, has been ignored and that is a serious error of law having a vitiating effect on the finding on most vital issue in the case."
It is necessary to be mentioned here that at the time when this appeal was filed no question of law was proposed but while issuing notice of motion the following observation was made:-
"Contends, inter alias, that in the sale deeds Exhibits P.6 and P.7 post-consolidation numbers of the land are mentioned. As regards the sale of land in favour of the appellants vide sale deed Exhibit PW7/1 Khatauni Pamaish connects the pre- consolidation numbers with the post-consolidation ones in respect of which suit was filed.
Notice of motion for 14.9.1987.
Stay dispossession till further orders."
Today learned senior Advocate has amplified this legal assertion to argue that the findings of the Courts below are based on such perverse misreading of the evidence that they are liable to be interfered with under Section 100 CPC. In this connection he has relied upon Hero Vinoth (minor) v. Seshammal reported as 2006(5) S.C.C. 545 wherein the Hon'ble RSA No. 1747 of 1987 7 Supreme Court held as follows:-
"25. The principles relating to Section 100 CPC, relevant for this case,may be summarised thus :-
(i) ................................................................................................
(ii) ................................................................................................
(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously;
or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
To the same effect is the judgment in Rattan Dev v. Pasam Devi reported as 2002(7) S.C.C. 441 wherein the Hon'ble Supreme Court held as follows:-
"4. In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the trial Court. While doing so, the first Appellate Court could have taken the factum of the non-examination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory. Non-application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits."
To substantiate these pleas he has drawn to the Khatauni Pamaish Ex.D2, a RSA No. 1747 of 1987 8 perusal of which shows the pre-consolidation numbers along with the corresponding new numbers which were given. Learned counsel for the respondents is not in a position to deny that the pre-consolidation numbers mentioned in the sale deed Ex.PW7/1 correspond to the post consolidation numbers mentioned in the plaint. It has thus to be held that the appellant was able to link the land mentioned in the plaint with the land which he had purchased by sale deed Ex.PW7/1.
Per contra learned Senior Advocate appearing on behalf of the respondents have made three assertions. He has firstly argued that admittedly in the plaint the date of the sale deed was mentioned as 18.1.1955. This fact was specifically denied in the written statement yet even in the replication it was persisted with. Consequently it is argued that no evidence in respect of the sale deed dated 8.1.59 could have been looked at. The second argument of learned Senior counsel is that admittedly no partition had taken place of the land in dispute and thus Sheodhan could not have made a sale deed of specific khasra numbers. The third argument of learned Senior Advocate is that the sale even if accepted could not have been made being in violation of Section 9 of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as 'the Act').
With regard to the first argument learned counsel for the appellant relied upon Gulzara Singh v. Devinder Singh reported as 2004 (3) CCC 455 wherein this Court held as follows:-
"13. Now the question arises is whether the mistake in the judgment and decree which has arisen not account of any mistake of the court but in view of the mistake in the plaint can be corrected in exercise of the powers under Sections 152 RSA No. 1747 of 1987 9 and 153 of the Code. This question has been dealt with by a Division Bench of this Court in Pritam Singh's case wherein it has been held that a court can under Section 152 of the Code of Civil Procedure amend clerical error in decree although the error may have first occurred in the pleadings and it is not necessary to first amend the pleading in such a case. It was held to the following effect :
"The learned counsel for the appellant next contended that the decree was correctly drawn in this case according to the Khasra numbers mentioned in the plaint and as such there was no clerical or accidental error in the decree. No amendment of the decree, therefore, could be ordered under Section 152 of the Code of Civil Procedure unless the mistake was first corrected in the plaint which would necessarily attract the application of the provisions of Section 153 of the Code. The argument, however, has no merit. It is now almost a settled law that a Court can under Section 152 of the Code amend clerical errors in a decree although the error may have first occurred in the pleadings and it is not necessary to first amend the pleadings in such a case.
xxx xxxx We are, therefore, of the considered view that a mistake in the decree can be corrected by the Court under Section 152 of the Code of Civil Procedure even though it may have been copied from the pleadings of the parties itself and it is not necessary for the correction of the decree to first amend the pleadings."
Apart from this it has to be noticed that admittedly the appellant had annexed copies of the sale deed along with the plaint. The said sale deed RSA No. 1747 of 1987 10 mentioned the correct date. Thus there was no occasion for the respondents to be misled by the wrong date. The second argument of the learned counsel has to be noticed only to be rejected. The mere fact that partition had not taken place could not take away the right of the co-owner to sell his share and only because he had given specific khasra numbers in the sale deed it would not have the effect of voiding the sale. As regards the third argument, it would be apposite to reproduce Section 9 of the Act which is to the following effect:-
"S. 9 Penalty for transfer or partition contrary to provisions of Act.- The transfer or partition of any land contrary to the provisions of this Act shall be void."
To invoke this section it would have to be proved that in fact, consolidation was in progress at the time when the sale took place. Neither is there any pleading to this effect nor any evidence has been led. In the circumstances the sale cannot be said to be affected by the alleged pendency of consolidation proceedings. Apart from this learned counsel for the appellant has relied upon Siri Kishan and others v. Mam Chand through his LRs reported as 1982 All India Land Laws Reporter 7- wherein this Court held as follows:-
"6. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx But as regards the rights of the parties to the transactions inter se they will bind them and the transferee can enforce in a court of law the transaction against the transferor and follow the land which is allotted to the transferor during consolidation since there is no indication in the section that the transaction itself RSA No. 1747 of 1987 11 would be totally void even between the parties to the same."
Thus, it has to be held that the appellant has been able to prove that he had indeed purchased the property from the share of Sheodhan and Lila son of Ramji Lal.
Consequently all the four appeals are allowed and the judgments and decrees of the Courts below are set aside and the suit/s filed by the appellant/s are decreed. A copy of this order be placed on the files of all the connected cases.
(AJAY TEWARI) JUDGE July , 2010 sunita