Savitri Devi vs Dharam Pal And Ors
2023 Latest Caselaw 357 P&H

                            RSA No.4263 of 2004                                                          -1-

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            209                                           RSA No.4263 of 2004
                                                                          Reserved on : 15.12.2022
                                                                          Date of Decision : 10.01.2023

                            Savitri Devi                                                       ....Appellant

                                                               VERSUS

                            Dharam Pal and Others                                           ....Respondents

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :      Mr. A.P. Bhandari, Advocate for the appellant.

                                           Mr. Yagsimant Attri, Advocate for respondent nos.1 and 2.

                            ALKA SARIN, J.

The present appeal has been preferred by the defendant No.2-

appellant against the impugned judgements and decrees dated 05.04.2001

and 24.08.2004 passed by the Trial Court and the lower Appellate Court,

respectively, decreeing the suit for declaration filed by the plaintiff-

respondent Nos.1 and 2.

The brief facts relevant to the present lis are that defendant

No.1 (proforma respondent No.3 herein) was owner of land measuring 15

kanals 19 marlas and land measuring 115 kanals comprised in Khewat

No.504 min Khatauni Nos.600, 601 min, 602 min, 603 min situated in the

revenue estate of village Balu, Tehsil Kalayat, District Kaithal. He is stated

to have sold the suit land in favour of the plaintiff-respondent Nos.1 and 2

vide registered sale deed dated 27.05.1993 for a sale consideration of

Rs.1,72,000/-. The defendant No.2-appellant filed a collusive suit no.90/94

titled 'Savitri vs. Sita Ram' in the Court of Sub Judge, Kaithal for

declaration to the effect that she was owner of land measuring 30 kanals 10

marlas out of the land measuring 115 kanals 01 marlas. In this suit the

defendant therein (proforma respondent No.3 herein) filed an admission JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and integrity of this order/judgment.

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written statement and on the basis of said admitted written statement the suit

was decreed on 08.02.1994. The subject matter of the said suit i.e. land

measuring 30 kanals 10 marlas included the land measuring 15 kanals 19

marlas which is stated to have been sold to the plaintiff-respondent Nos.1

and 2 vide registered sale deed dated 27.05.1993. The present suit was filed

by the plaintiff-respondent Nos.1 and 2 for a declaration that the decree

dated 08.02.1994 was null and void and not binding on the rights of the

plaintiff-respondent Nos.1 and 2 as defendant No.1 (proforma respondent

No.3 herein) was not owner of the suit land on the date of decree dated

08.02.1994 and, as such, he could not have suffered a consent decree in

favour of his wife. The defendant No.1 (proforma respondent No.3 herein)

was proceeded against ex parte. Written statement was filed by the

defendant No.2-appellant wherein it was averred that a suit simpliciter for

declaration was not maintainable as no relief of possession was sought and

the plaintiff-respondent Nos.1 and 2 were not in possession of the suit land.

It was further averred that the suit was liable to be stayed as an earlier suit

titled 'Ishwar etc. vs. Sita Ram etc.' was already pending regarding the same

subject matter. It was further averred that the land was ancestral in nature

and that the sale was without any legal necessity and that the sale deed was

null and void and not binding on the rights of the defendant No.2-appellant

and her sons.

On the basis of pleadings of the parties the following issues

were framed by the Trial Court :

1. Whether the decree dated 08.02.1994 passed in

civil suit no.90/94 re; Savitri Devi vs. Sita by Sh. H.S.

Thakur, the then learned Sub Judge, Ist Class, Kaithal is JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and integrity of this order/judgment.

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null and void as alleged by the plaintiff in para no.6 of

the plaintiff? If so what effect ? OPP

2. Whether the suit is not maintainable ? OPD

3. Whether the defendant is in possession of the suit

land and suit for declaration simpliciter does not lie ?

OPD

4. Whether the principle of res judicata applies to this

case as an earlier suit titled as Ishwar etc. vs. Sita Ram

etc. is already pending before the court of Sh. J.S.

Jangra, ld. Civil Judge (Sr.Division), Kaithal ? OPD

5. Relief.

Subsequently, following the additional issues were framed :

5. Whether the suit property is ancestral/coparcenary

property as alleged ? OPD

6. If issue no.5 is proved whether the sale in favour of

plaintiff is for legal necessity ? OPD

7. Relief.

Again the following additional issue was framed :

3-A. Whether the suit land was got redeemed by Sita

Ram after paying mortgage money and the possession is

with the mortgagee as alleged ? OPD

The Trial Court held that the suit property was not ancestral in

nature and that vide sale deed dated 27.05.1993 (Ex.P1), the land measuring

15 kanals 19 marlas stood sold to the plaintiff-respondent Nos.1 and 2. The

suit was accordingly decreed vide judgment and decree dated 05.04.2001.

Aggrieved by the said judgment and decree, an appeal was preferred by the JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and integrity of this order/judgment.

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defendant No.2-appellant which was also dismissed vide judgment and

decree dated 24.08.2004. Hence, the present regular second appeal.

Learned counsel for the defendant No.2-appellant would

contend that a suit for declaration was not maintainable as the plaintiff-

respondent Nos.1 and 2 were not in possession of the suit land and no relief

of possession had been sought. It is further the contention that the revenue

documents clearly show that the defendant No.2-appellant was in

possession. Learned counsel for the defendant No.2-appellant would further

contend that the suit land is ancestral in nature and the same was transferred

without any legal necessity. It is further contended that the plaintiff-

respondent Nos.1 and 2 did not press issue no.5 and hence issue no.5 ought

not to have been decided by the Trial Court in their favour.

Per contra learned counsel for the plaintiff-respondent Nos.1

and 2 has contended that they were in possession of the suit land inasmuch

as the suit land was got redeemed by them and the mortgagees had handed

over possession of the suit land to plaintiff-respondent Nos.1 and 2. It is

further the contention that in the sale deed itself there was a recital that

possession of the suit land had been handed over to the plaintiff-respondent

Nos.1 and 2.

I have heard learned counsel for the parties.

In the present case the plaintiff-respondent Nos.1 and 2 had

approached the Court averring in their plaint that defendant No.1 (proforma

respondent No.3 herein) had sold the suit land in their favour vide registered

sale deed dated 27.05.1993. Consideration for the said suit land was

Rs.1,72,000/- out of which Rs.60,000/- was paid as earnest money and

Rs.1,00,000/- was to be paid to the mortgagee since the land was under JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and mortgage. The remaining amount of Rs.12,000/- was to be paid before the integrity of this order/judgment.

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Sub-Registrar. Vide the registered sale deed dated 27.05.1993 the land

measuring 15 kanals 12 marlas was sold in favour of plaintiff-respondent

Nos.1 and 2. Admittedly, defendant No.1 (proforma respondent No.3 herein)

was owner of the land measuring 115 kanals 08 marlas situated in village

Balu, Tehsil Kalayat District Kaithal. As per jamabandis placed on the

record for the year 1989-90, qua Rect. No.27 Killa Nos.7, 14, the names of

Sita son of Sheo Nath has been recorded in the capacity of mortgagor and

the names of Smt. Junni, Gurnami, Choto, Ramesh and Satbir have been

recorded in the capacity of mortgagees. A perusal of the judgments and

decrees passed by both the Courts below reveals that no revenue documents

prior to 1989-90 have been placed on the record which would show the

ancestral nature of the suit property. In fact, learned counsel for the

defendant No.2-appellant has been unable to point out to any document on

the record to show that the suit property was ancestral in nature. The

argument raised by learned counsel for the defendant No.2-appellant that

since issue no.5 was not pressed by the plaintiff-respondent Nos.1 and 2 and

hence ought not to have been decided in their favour by the Trial Court

cannot be accepted for the reasons, firstly, the onus of the issue was on the

defendants; and secondly, even if the issue was treated as not pressed, the

same in any case would have been decided against the defendants. However,

the Courts below in their wisdom dealt with issue no.5 since the issue in

hand was whether the sale deed executed in favour of the plaintiff-

respondent nos.1 and 2 on 27.05.1993 could have been executed by

defendant No.1 (proforma respondent No.3 herein). Learned counsel for the

defendant No.2-appellant has not been able to show any case law in support

of his argument that in case an issue is not pressed the Court is debarred JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and from returning a finding on the said issue. Dealing with the next argument of integrity of this order/judgment.

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learned counsel for the defendant No.2-appellant that the suit itself was not

maintainable since possession was not sought also deserves to be rejected on

the ground that in the registered sale deed dated 27.05.1993 there was a

recital that the land stood mortgaged and Rs.1,00,000/- out of the sale

consideration was to be paid to the mortgagees to get the land redeemed.

The plaintiff-respondent No.1 himself stepped into witness-box as PW3 and

testified that they got the land redeemed after making payment of

Rs.1,00,000/- as per terms and conditions of the sale deed. The plaintiff-

respondent Nos.1 and 2 also examined Arjun Singh, who is the witness to

the writing dated 05.06.1993 (Ex.D8) which was reduced into writing to get

the land redeemed, and he deposed that Baldev Singh (plaintiff-respondent

No.2) had paid Rs.1,00,000/- to get the land redeemed and the same was

reduced into writing (Ex.D8). The original mortgage deed was also produced

on the record. In Ex.D8 it had been mentioned that possession was delivered

to the owners. Learned counsel appearing on behalf of the defendant No.2-

appellant has laid much stress on the fact that there is a recital in Ex.D8 that

possession of the land was delivered to the owners and that the defendant

No.2-appellant was the owner and that being so the a simpliciter suit for

declaration was not maintainable. A conjoint reading of the sale deed as well

as Ex.D8 leaves no manner of doubt that the possession was delivered to the

plaintiff-respondent Nos.1 and 2.

In view of the above, I do not find any illegality or infirmity in

the judgments and decrees passed by both the Courts below. The concurrent

findings of fact recorded by both the Courts below do not warrant any

interference by this Court. No question of law, much less substantial

question of law, arises in the present appeal which is wholly devoid of any JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and integrity of this order/judgment.

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merits and is accordingly dismissed. Pending applications, if any, also stand

disposed off.

Dismissed.

                                                                                      ( ALKA SARIN )
                            10.01.2023                                                    JUDGE
                            jk

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

JITENDER KUMAR 2023.01.10 12:12 I attest to the accuracy and integrity of this order/judgment.

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