Karnail Singh vs Kulwinder Singh
2023 Latest Caselaw 1752 P&H

RSA-2299-1992 (O&M)                                                    -1-

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                RSA-2299-1992 (O&M)
                                Date of decision: 27.01.2023

Karnail Singh and others
                                                            ...Appellants
                    Versus

Kulwinder and others

                                                           ...Respondents

CORAM: HON'BLE MR.JUSTICE H.S. MADAAN

Present:    None.

                                *****

H.S. MADAAN, J.

Nobody has put in appearance on behalf of the parties. The

appeal is of the year 1992, therefore, I proceed to decide it after going

through the record.

2. Briefly stated facts of the case are that plaintiffs Kulwinder

and Jaswinder both minor sons of Shingara Singh son of late

Lachhman Singh through their mother Smt. Chhindo had brought a suit

against defendants Shingara Singh and others seeking a declaration

that the land in suit situated in the area of Village Lohgarh, Tehsil

Phillaur, fully described in the headnote of the plaint is joint Hindu

family ancestral property and the plaintiffs are in joint possession of

the suit land to the extent of 1/3 share each.

According to the plaintiffs, sale deeds dated 31.01.1985

and 06.02.1985 executed by their father Shingara Singh-defendant

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No.1 in favour of defendant No.2 Jaswant Singh and defendant No.3

Bakshish Singh and sale deed dated 08.07.1986 in favour of defendant

No.4 Dalbir Singh, sale deed dated 08.07.1986 in favour of defendant

No.5 Bakshish Singh, sale deed dated 13.08.1986 in favour of

defendant No.6 Karnail Singh are null and void.

As per case of the plaintiffs, they along with their father

Shingara Singh, formed a Joint Hindu Family and the suit land is

ancestral qua plaintiffs and defendant No.1. A few years before filing

of the suit, relations between the plaintiffs and defendant No.1 became

strained, as such, the plaintiffs along with their mother had to shift to

the parental place of their mother and since then they are residing

there. Shingara Singh-defendant No.1 had sold the suit property to

defendants No.2 to 6, vide various sale deeds, which he could not do as

he had no legal necessity of doing so and the alienation were not made

for the benefit of the estate. Plaintiffs had called upon defendant No.1

to admit their claim but to no effect, as such, they had brought the suit

in question.

3. On getting notice, defendant No.1 had appeared and filed a

written statement, contesting the suit, denying the allegations levelled

in the plaint. Defendant No.1 claimed himself to be exclusive owner of

the suit property with which plaintiffs have no right or concern.

According to defendant No.1, he had alienated the suit property for

legal necessity in order to pay the amount of decrees obtained by the

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plaintiffs and their mother Smt. Chhindo against such defendant.

Defendant No.1 defended the sale deeds as legal and valid documents.

Refuting the remaining assertions, such defendant brought for

dismissal of the suit.

4. Defendant No.3 had not appeared in the Court despite

service, as such, was proceeded against ex parte, whereas, defendants

No.2, 4 and 6 did put in appearance but failed to file any written

statement.

5. Plaintiffs filed replication to the written statement

submitted by defendant No.1 controverting the allegations therein,

whereas reiterating the averments in the plaint.

6. From the pleadings of the parties, following issues were

framed:-

1. Whether the disputed property is joint Hindu family/ancestral property of the parties, if so, its effect? OPP.

2. Issue No.1 is proved, whether the sale deeds dated 31.01.1985 and 06.02.1985 in favour of defendants No.2 and 3 were executed by defendant No.1 for consideration and legal necessity? OPD.

3. Whether the sale deeds dated 08.07.1986 and 13.08.1986 in favour of defendants No.4 to 6 were executed by defendant No.1 for consideration and legal necessity? OPD.

4. Whether the plaintiffs have got no locus standi to file the present suit? OPD.

5. Whether the suit as framed is not maintainable? OPD

6. Whether the plaintiffs are estopped by their act and

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conduct to file the present suit? OPD.

7. Relief.

7. The parties were afforded sufficient opportunities to lead

evidence in support of their respective claims.

8. After hearing arguments, the trial Court of Sub Judge, Ist

Class, Phillaur, on deep and thorough analysis of the evidence brought

on file by the parties, in the light of pleadings and settled law on the

subject, decided issue No.1 in favour of the plaintiffs and against the

defendants, holding the suit property to be ancestral in nature; issues

No.2 and 3 were decided against the plaintiffs and in favour of the

defendants, holding that the impugned sale deeds executed by

defendant No.1 in favour of defendants No.2 and 3 were illegal being

without legal necessity and as such were not sustainable. With regard

to sale deeds executed by defendant No.1 dated 13.08.1986 and

08.07.1986 in favour of defendants No.4 to 6, those were held to be

valid being for legal necessity; issues No.4 to 6 were not decided as

being not pressed by learned counsel for the parties during the course

of arguments, therefore, decided against the defendants. Resultantly,

vide judgment and decree dated 31.05.1988, suit of the plaintiffs was

dismissed.

9. Feeling aggrieved by such judgment and decree passed by

the trial Court, the plaintiffs had filed an appeal before District Judge,

Jalandhar. That appeal was assigned to Addl. District Judge, Jalandhar,

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who vide judgment and decree dated 05.09.1992 accepted the appeal

partly, inasmuch as the sale deeds dated 08.07.1986 and 13.08.1986 in

favour of defendants No.4 to 6 executed by defendant No.1 Shingara

Singh were declared as null and void without consideration and

respondent No.1 was restrained from alienating the land by way of

sale, mortgage whereas claim of the plaintiffs in respect of other sale

deeds dated 31.01.1985 and 06.02.1985 was dismissed.

10. Feeling dissatisfied with such judgment and decree,

defendants Karnail Singh, Shingara Singh and Dalbir Singh have

approached this Court by way of filing the present Regular Second

Appeal, notice of which was given to the respondent/plaintiffs, who

had put in appearance through counsel initially but subsequently, both

the parties had not put in appearance.

11. I have gone through the record and I find that the rejection

of the claim of plaintiffs by the trial Court in toto was incorrect and not

justified. The trial Court relying upon judgment dated 02.05.1985 in

suit titled as 'Kulwinder Singh & Ors. Vs. Shingara Singh & Ors.' for

permanent injunction restraining the defendants from alienating the

suit land which was subject matter of the present suit except for legal

necessity and benefit of estate; in that suit, an issue was framed

whether the land in suit is joint Hindu family coparcenary property of

the parties to the suit. Vide judgment dated 02.05.1985, that issue was

decided in favour of the plaintiffs, holding that the suit land is ancestral

property of the parties. This judgment had become final between the

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parties, since no appeal had been filed by either of the parties against

that judgment. Thus, applying doctrine of res judicata in terms of

Section 11 CPC, the trial Court held that the suit property was ancestral

coparcenary property qua the plaintiffs and defendant No.1. In view of

such findings on issue No.1, the trial Court while deciding issue No.2

observed that the contention of plaintiffs that sale deeds dated

31.01.1985 and 06.02.1985 by defendant No.1 in favour of defendants

No.2 and 3 are illegal, being without legal necessity, do not hold good

and fall to the ground in terms of Order 2 Rule 2 CPC except that the

suit had been filed on 05.03.1985 and after execution of sale deeds in

question and as per Order 2 Rule 2 CPC all the reliefs to which one is

entitled should be claimed in one and the same suit.

Similarly, sale deeds dated 13.08.1986 and 08.07.1986

were not declared to be illegal, null and void. The trial Court had

dismissed the civil suit filed by the plaintiffs.

However, the Ist Appellate Court by minute and through

analysis of the evidence adduced by the parties, their pleadings,

observed that in the earlier litigation between the parties, Shingara

Singh was specifically restrained from alienating the suit property

except for legal necessity, vide judgment and decree dated 02.05.1985

by then Sub Judge, however, Shingara Singh had shown disregard by

way of executing fresh sale deeds on 08.07.1986 Mark 'C', dated

31.10.1986 Mark 'D' as well 13.08.1986 Mark 'E' and there was

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nothing on record to show that those were not executed by defendant

No.1 for legal necessity and for consideration. But with regard to sale

deeds Mark A dated 31.01.1985 and Mark B dated 06.02.1985 which

were executed by Shingara Singh much prior to passing of decree

Ex.P2, there was nothing on record to show that those sale deeds were

executed by Shingara Singh in spite of directions issued by the trial

Court restraining him from alienating the land because the said act was

already done by him before passing of the decree whereas with regard

to sale deeds Mark C, D and E, which were executed by Shingara

Singh after passing of decree for permanent injunction against himself

with the civil Court having given findings that the suit is ancestral

property and Shingara Singh having been restrained from alienating the

same then any alienation made by defendant Shingara Singh was a

sham transaction, having no legal force and the plaintiffs are not bound

by the same. It was observed that it seems that Shingara Singh had

executed bogus sale deeds in order to deprive the plaintiffs of their

right to inherit the property or to reap the fruits of the same.

Resultantly, the appeal had been accepted partly as detailed above.

12. The judgment passed by the Ist Appellate Court of Addl.

District Judge, Jalandhar is quite detailed, well reasoned, based upon

proper appraisal and appreciation of evidence and correct interpretation

of law. The judgment and decree passed by the trial Court which had

been passed in a perverse and arbitrary manner were rightly set aside. I

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do not see any reason to interfere with the judgment passed by the Ist

Appellate Court. The same does not suffer from any illegality or

infirmity. No substantial question of law arises in this appeal. The

appeal stands dismissed accordingly.

27.01.2023                                          (H.S. MADAAN)
sumit.k                                                 JUDGE

             Whether speaking/reasoned :      Yes          No
             Whether Reportable :             Yes          No




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