Punjab-Haryana High Court
Sham Singh vs Randhir Singh on 4 April, 2024
Neutral Citation No:=2024:PHHC:044212
RSA-781-1993 (O&M). -1- 2024:PHHC:044212
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
144
RSA-781-1993 (O&M).
Date of Decision: 04.04.2024.
SHAM SINGH
... Appellant
Versus
RANDHIR SINGH AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Vikas Singh, Advocate,
for the appellant.
VINOD S. BHARDWAJ, J (ORAL).
Appellant-plaintiff is in an appeal against the judgment and decree dated 04.09.1992 passed by the Additional District Judge, Patiala in Civil Appeal No. 172 of 29.07.1988, whereby he partly allowed the appeal of the appellant-plaintiff against the judgment and decree dated 10.06.1988 passed by the Sub Judge 1st Class, Rajpura in Civil Suit No. 104 instituted on 10.01.1984, dismissing the suit.
2 Briefly summarized facts of the case are that the Appellant- plaintiff Sham Singh is son while the proforma respondents Mohinder Kaur and Surinder Kaur are daughters of Bakhtawar Singh and Bachan Kaur, respondent No.2-defendant No.5. A suit for declaration was filed by the appellant-plaintiff to the effect that the transfer through decree dated 1 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -2- 2024:PHHC:044212 20.07.1974 of agricultural land measuring 14 bighas 10 biswas comprised in Khasra No.936 min (2-10¾); 937 (4-0); 938 (4-0); 939 (4-0) as per jamabandi for the year 1982-83 situated in the revenue estate of village Rampur, Tehsil Rajpura, District Patiala, by respondent No.2-defendant No.5 Bachan Kaur in favour of respondent-defendant No.1 Randhir Singh is null, void and illegal and as a result of collusion and fraud and is not binding on the rights of the appellant-plaintiff. Further, a challenge was also raised to the sale of agricultural land measuring 14 bighas 12 biswas being 292/320 share in land measuring 72 bighas 19 biswas comprised in Khasra Nos.458, 259, 460, 461 and 462 as per jamabandi for the year 1982-83 detailed in the headnote of the plaint, vide registered sale deed dated 29.07.1976 by respondent No.2-defendant No.5 Bachan Kaur in favour of Gurdev Singh, Inderjit Singh and Surinder Singh was also illegal, null and void, being without consideration and not binding on the rights of the appellant-plaintiff. It was stated in the plaint that the appellant-plaintiff along with respondent No.2-defendant No.5 Bachan Kaur were co-owners of the agricultural land measuring 72 bighas 19 biswas and that Bachan Kaur transferred an area measuring 14 bighas 10 biswas by suffering a collusive decree dated 20.07.1974 in favour of Randhir Singh which was unlawful, without legal necessity and without any consideration. Bachan Kaur had also executed a sale deed for an area measuring 14 bighas 12 biswas in favour of defendants No.2 to 4 vide registered sale deed dated 29.07.1976 and that the said sale deed was also without legal necessity and consideration and was beyond the 1/5th share of Bachan Kaur and was thus not binding. Hence, the suit for declaration was filed.
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3 Respondent No.2-defendant No.5 Bachan Kaur did not join the
proceedings despite personal service and was accordingly ordered to be proceeded against ex parte.
4 Two separate written statements were, however, filed by respondents-defendants No.1 and defendants No.2 to 4. Respondent- defendant No.1 Randhir Singh admitted the relationship of appellant- plaintiff with respondent No.2-defendant No.5 Bachan Kaur and that the decree dated 20.07.1974 had been suffered by Bachan Kaur and that ever since the said decree, he is in possession of the land in question. It is contended that the said decree is binding on Bachan Kaur as well as the appellant-plaintiff since Bachan Kaur was the absolute owner of the land and was competent to transfer or deal with the same in any manner as she liked. It was submitted that the institution of the present suit was at the behest of and in collusion with Bachan Kaur, who had herself earlier filed a civil suit No.421 of 28.11.1975 challenging the above said judgment and decree dated 20.07.1974 on the ground of fraud and that the said civil suit was dismissed on 19.03.1982. It was contended that the above said judgment and decree operates as res judicata against the appellant-plaintiff and that they cannot re-agitate the said issue once the suit filed by respondent No.2-defendant No.5 had already been dismissed. A plea of limitation was also raised.
5 A separate written statement was filed by defendants No.2 to 4 wherein it was stated that the deceased Bakhtawar Singh (husband of Bachan Kaur) died leaving behind plaintiffs, Bachan Kaur and one more daughter as his heirs. Bachan Kaur thus had 1/5th share in the entire 3 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -4- 2024:PHHC:044212 agricultural land and that she transferred her share in favour of Randhir Singh defendant no.1 by way of a decree and that the same could not have been alienated by the said means and could only have been transferred by way of a registered sale deed. Randhir Singh thus does not become owner of the suit land. It is submitted that a valid sale deed was executed in their favour on 29.07.1976 and that they are owners in possession of land by virtue of the said sale deed.
6 Replication to the written statement was filed reiterating the averments made in the plaint.
7 On completion of the pleadings, the following issues were framed:-
1. Whether plaintiffs are co-owners of suit land mentioned in para 'B' in the head note of plaint? OPP
2. Whether the Judgment and decree dated 20.07.1974 is result of collusion, abuse of process of court and not binding on the plaintiff? OPP
3. Whether the sale deed dated 29.07.1976 is legal, valid sale for consideration? OPP 2 to 4
4. Whether the suit is barred by principles of constructive res judicata as alleged in para-No. I of the written statement? OPD-
No.1
5. Whether the suit is barred by principles of estoppel as alleged? OPD-No. 1
6. Whether the plaintiffs are merely figure head and suit is filed in collusion with Bachan kaur? OPD
7. Whether the suit is barred by time? OPD 4 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -5- 2024:PHHC:044212
8. Whether the suit is not maintainable? OPD
9. Whether the plaintiffs have no locus stand? OPD
10. Whether the suit is bad for non-joinder of parties and causes of action? OPD
11. Whether the sale by defendant No. 5 in favour of defendants No.2, 3, 4 is immune from challenge after enforcement of Hindu Succession Act 1956? OPD
12. Whether defendants are entitled to compensatory costs? OPD
13. Whether Bachan kaur defendant No.5 is Jat and governed by custom. If so its effect? OPD
14. Relief 8 Parties led their respective evidence and upon consideration of the same it was noticed by the trial Court that PW-2, plaintiff Sham Singh stated that Randhir Singh was not related to Bachan Kaur and that the decree was invalid and that she executed sale deed notwithstanding that Bachan Kaur had no right to alienate the land, which is under joint ownership. The witness however denied knowledge about mutation and institution of civil suit by Bachan Kaur.
9 It also noticed that file of the civil suit No.228 dated 07.06.1974, decided on 20.07.1974 was also summoned. Clerk of the Advocate representing Randhir Singh appeared as DW.2 while the Advocate representing Bachan Kaur appeared as DW.3. The said witness deposed that written statement (EX.D1) had been filed as per her instruction and ever thumb marked by her and her statement EX.D-2 was also recorded 5 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -6- 2024:PHHC:044212 in his presence. The pleadings, statements and judgment and decree in Civil Suit No.421 of 28.11.1975 were also proved on record. 10 Statement of Randhir Singh was recorded as per which Bachan Kaur was his aunt and he reiterated all other pleaded facts. It was also stated that Bachan Kaur was alive when the instant suit was filed. It was however admitted that decree was not registered and that he was not related to Bachan Kaur.
11 The other defendants however did not lead any evidence. 12 Upon consideration of the evidence, it was held that the judgment and decree dated 20.07.1974 passed in Civil Suit No.288 of 1974 decided on 20.07.1974 titled as Randhir Singh Vs. Bachan Kaur cannot be recalled since Bachan Kaur herself had filed a civil suit for declaration to the effect that the said judgment and decree dated 20.07.1974 was illegal, null and void and a result of fraud which was dismissed by the Sub Judge First Class, Rajpura vide judgment and decree dated 19.03.1982 (Ex.D2). The said judgment and decree thus became binding on Bachan Kaur and there was no cause of action or right that accrued with the appellant- plaintiff to file any fresh suit since Bachan Kaur had not alienated more than her share in the property left by Bakhtawar Singh. 13 While dealing with the issue as regards appellant-plaintiff being co-owner of the suit land and as to whether the sale deed dated 29.07.1976 was legal and valid, it was noticed by the Sub Judge First Class, Rajpura that the case of the appellant-plaintiff had no force since Bachan Kaur became absolute owner of the property after coming into force of the Hindu Succession Act, 1956 and it was not a case of a limited estate in her 6 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -7- 2024:PHHC:044212 favour. She had thus every right to alienate her share in the suit property. It was further held that vide the said sale deed dated 29.07.1976, she had alienated more than her share in the suit land. It was noticed that Bakhtawar Singh owned 72 bighas 19 biswas of land and a total area measuring 14 bighas 12 biswas fell to the share of Bachan Kaur. She having already suffered a decree in favour of respondent-defendant no.1 Randhir Singh with respect to 14 bighas 10 biswas, she had been left with only 02 biswas of land. Hence, there was no occasion for executing the sale deed for an area measuring 14 bighas 12 biswas, after the collusive decree had already been suffered by Bachan Kaur in favour of Randhir Singh @ Ranbir Singh. It was also noted that defendants No.2 to 4 did not step into the witness box despite being given an opportunity. The issue was decided against defendants No.2 to 4.
14 In view of the findings particularly on issues No.1, 2 and 3, it was held by the Sub Judge First Class, Rajpura that Bachan Kaur had alienated her share in favour of Randhir Singh respondent-defendant No.1 by way of a collusive decree and that she could not herself have alienated any land more than the remaining land that fell to her share and that the subsequent sale deed dated 29.07.1976 was illegal and deserved to be set aside, the suit of the appellant-plaintiff was partly decreed to the effect that the sale of the agricultural land measuring 14 bighas 12 biswas being 292/320 share in land measuring 72 bighas 19 biswas comprised in Khasra Nos.458, 459, 460, 461 and 462 as per the jamabandi for the year 1982-83 situated in the revenue estate of village Rampur, Tehsil Rajpura, District Patiala, vide registered sale deed dated 29.07.1976 by respondent No.2-
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defendant No.5 Bachan Kaur in favour of defendants No.2 to 4 was illegal, null and void and not binding on the rights of the appellant-plaintiff. Consequential relief of joint possession of the joint land was also granted in favour of the appellant-plaintiff. The suit was, however, dismissed with respect to the land measuring 14 bighas 10 biswas, which was subject matter of the decree dated 20.07.1974 and the suit decreed in favour of respondent-defendant No.1 was upheld.
15 Aggrieved of the above said judgment and decree dated 10.06.1988, the appellant-plaintiff Sham Singh preferred an appeal before the District Judge, Patiala.
16 It was argued by the appellant-plaintiff that the decree suffered by Bachan Kaur in favour of Randhir Singh was not binding on Sham Singh and he reiterated his argument. It was submitted that the decree was not got registered by Randhir Singh hence, it did not confer any title on him. It was also argued that the said decree could not be with respect to any specific Killa numbers out of joint land and that the same can only be by a decree to the extent of her share. It was also submitted that the decree could have at best recognized a pre-existing right to the extent of her share. 17 The contention was accepted in part and the decree dated 20.07.1974 was modified to the extent that the decree would not be applicable with respect to specific numbers and would only be enforced to the extent of 1/5th share of Bachan Kaur.
18 Still aggrieved, the present regular second appeal has been filed. It is also pertinent to mention here that no appeal has been preferred 8 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -9- 2024:PHHC:044212 by defendants No.2 to 4 against the judgment and decree dated 10.6.1988 whereby the sale deed executed in their favour was set aside. 19 Learned counsel appearing for the appellant has argued that the collusive decree could not have been executed by Bachan Kaur in favour of Randhir Singh and the same was bad and liable to be set aside since there was nothing on record on the basis of whereof, it can be held that there was a pre-existing right in favour of Randhir Singh in the said land. The collusive decree was thus required to be registered. The same having not been registered, the said decree is thus bad and not binding on the rights of the appellant-plaintiff as the right in favour of respondent Randhir Singh was created for the first time vide decree dated 20.07.1974, hence, no reliance can be placed on the said judgment and decree for vesting any title in favour of respondent Randhir Singh. The same thus deserves dismissal and the suit ought to be decreed.
20 No other argument has been raised.
21 I have heard learned counsel appearing for the appellant- plaintiff and have also gone through the record with his assistance. 22 It has remained uncontroverted that the judgment and decree dated 20.07.1974 passed by the Sub Judge First Class, Rajpura, was subsequently challenged by Bachan Kaur by filing Civil Suit No.421 of 28.11.1975 and the said suit was also dismissed on 19.03.1982. The act of execution of the sale deed by Bachan Kaur in favour of defendant No.2 to 4 was on 29.07.1976 i.e. after suffering of a consent decree and was clearly an attempt to avoid performance of her obligation. In the present suit as well, respondent No.2-defendant No.5 Bachan Kaur chose to be proceeded 9 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -10- 2024:PHHC:044212 against ex parte. Once Bachan Kaur had herself raised a challenge to the decree alleging the same having been obtained by way of fraud and the said ground having not been upheld by the Court and the said judgment and decree having become final, the appellant-plaintiff who stepped into the shoes of Bachan Kaur cannot re-agitate the same grounds as were available to Bachan Kaur in the civil suit instituted by her in which a judgment and decree had already been passed on 19.03.1982.
23 There is also no evidence on record on the basis whereof, it may be held that respondent No.2-defendant No.5 did not have any right to alienate the suit land. Further, the land/area transferred by way of decree dated 20.07.1974 is within the area that fell to the share of Bachan Kaur and that she, being an absolute owner of the property that fell to her share by virtue of the Hindu Succession Act, 1956, had every right to alienate the same. Concurrent findings have been recorded by both the Courts on the said issue. There is nothing on the record on the basis whereof, it can be held that the said finding suffers from any illegality, impropriety or perversity.
24 In so far as the argument of the appellant-plaintiff that there was no pre-existing right in favour of respondent-defendant No.1 Randhir Singh, and as such, a collusive decree could not have been suffered, I find that the above said argument is liable to be rejected as no such plea had been raised by the appellant-plaintiff in the plaint and as such, no issue in this regard was framed. Having chosen not to raise this objection at the time of institution of the plaint or at the stage of appeal or for seeking framing of any additional issue, the said argument cannot be raised at this stage since 10 of 11 ::: Downloaded on - 03-05-2024 20:51:51 ::: Neutral Citation No:=2024:PHHC:044212 RSA-781-1993 (O&M). -11- 2024:PHHC:044212 the said aspect would be a question required to be established by leading evidence. In the absence of any pleadings raised or issues framed, the argument advanced by the learned counsel for the appellant-plaintiff cannot be accepted at the stage of second appeal or the said argument would travel beyond the pleadings or issues framed by the Courts. There was no occasion or reason for the appellant-plaintiff to have not raised the said issue in the plaint and seek determination thereof by leading evidence. Having not raised such a plea or leading any evidence in this regard, the above said argument involving questions of fact cannot now be appreciated at this stage. The argument is thus unacceptable and is accordingly declined. 25 There are also no substantial questions of law that arise. Both the Courts have upheld the judgment and decree dated 20.07.1974 suffered by respondent No.2-defendant No.5 Bachan Kaur in favour of Randhir Singh and there is no evidence on the basis of whereof said finding can be held to be illegal, void or unsustainable from a reading and interpretation of the evidence.
26 The present appeal is accordingly dismissed. Judgment and decree dated 04.09.1992 passed by the Additional District Judge, Patiala modifying the judgment and decree dated 10.06.1988 passed by the Sub Judge 1st Class, Rajpura, is accordingly affirmed. 27 Pending, misc. application(s), if any shall also stand(s) disposed of accordingly.
April 04, 2024. (VINOD S. BHARDWAJ
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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