Punjab-Haryana High Court
Sukhmandar Singh & Ors vs Jangir Kaur & Ors on 3 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:045395
RSA-772-1994 (O&M) 1 2024:PHHC:045395
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-772-1994 (O&M)
Reserved on: 21.03.2024
Date of decision:03.04.2024
Sukhmandar Singh and others
....Appellants
Versus
Smt. Jangir Kaur and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Parvinder Singh, Advocate for the appellants
Mr. A.D.S.Jattana, Advocate for the respondents
ANIL KSHETARPAL, J
1. Brief facts of the case:-
1.1 This is the plaintiff's second appeal against the concurrent
judgments passed by the courts below while dismissing their suit for the
grant of decree of possession with respect to land measuring 177 kanals
15 marlas.
1.2 In order to comprehend the issue involved in the present
case, some relevant facts, in brief, are required to be noticed, alongwith
the following family tree is required to be noticed:-
Deva Singh
_____________________________|_____________________________
| | | |
Hazura Singh Bishan Kaur Kakkar Singh Sher Singh
| @ Bishno |
Natha Singh Buta Singh
(plaintiff no.1) |
Labh Singh
(plaintiff no.2)
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1.3 Smt.Bishno alias Bishan Kaur was owner of the property.
Sh.Natha Singh and Sh.Labh Singh, the plaintiffs, filed a suit for the
grant of decree of declaration that in a family settlement the property has
fallen into their share against Smt. Bishno. She conceded to the claim of
the plaintiffs resulting in judgment and decree dated 23.05.1985.
However, the court passed the following brief order, the operative part
whereof reads as under:-
"Heard. A collusive decree passed. No costs.
Decree-sheet be prepared and file be consigned."
1.4 Sh.Sukhdev and Smt. Jangir Kaur filed a civil suit no.471
dated 13.08.1985 for the grant of decree of permanent injunction against
Sh.Natha Singh, Sh.Labh Singh and Smt. Bishno. In that suit, the
plaintiffs claim themselves to be in possession of the suit land as tenants
under Smt. Bishno. Defendants no. 1 to 3 contested the suit claiming
that the plaintiffs in that suit were not in possession and previously
defendant no.3 Smt. Bishno was the owner and now defendants no. 1
and 2 are owners thereof. It was alleged that even if the land was given
on lease for a particular year, after expiry of the period, the plaintiffs
could not claim to be in possession as lessees. In that suit, the following
issues were settled by the trial court:-
"1) Whether the plaintiffs are in possession
of the suit land under defendant No.3, if so its effect? OPP.
2) Whether the plaintiffs are entitled for
injunction prayed for? OPP.
3) Whether the plaintiffs have no locus
standi to file the suit? OPD.
4) Whether the plaintiffs have no cause of
action? OPD.
5) Whether the suit is maintainable in the
present form? OPD.
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6) Whether the defendfants are in possession of
the suit land as owner? OPD.
7) Relief."
1.5 The trial court held that from the perusal of the Jamabandis,
it is proved that the plaintiffs are in possession as lessees. The court also
found there is an entry in the revenue record to the effect that defendant
no.1 and 2 namely Sh.Natha Singh and Sh.Labh Singh have become the
owners. Ultimately, the court held that the plaintiffs are in possession of
the suit land but no more under Smt. Bishno. Thus, the plaintiffs' suit
was decreed and the defendants were restrained from dispossessing the
plaintiffs from the suit land otherwise than in due course of law.
Thereafter on 16.07.1987 Sh.Natha Singh and Sh.Labh Singh filed a suit
for possession with respect to land measuring 177 kanals 15 marlas.
Smt. Jangir Kaur alias Jagir Kaur filed civil suit no. 120 of 1988 to
challenge the correctness of the judgment and decree passed on
23.05.1985, however, the same was withdrawn on 25.08.1989. The
plaintiffs suit for possession was dismissed by the trial court, which in
appeal has been affirmed by the appellate court.
2. Arguments adduced:-
2.1 Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook, alongwih the
requisitioned record.
2.2 Learned counsel representing the appellants has filed
synopsis of the case, which reads as under:-
"The Decree dated 23.05.1985 (Ex.A2, pg 88
LCR) is valid as per the following averments:-
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> The decree has been pleaded in para 2 at
backside of pg. No.8 LCR, though the Defendants denied it
but no counter claim has been filed to challenge decree.
> The Defendant No.3 filed suit to challenge
the said decree (Ex.P8, pg. 60 LCR) I.e Civil Suit no.120 of
20.03.1988 which was withdrawn without any liberty on
25.08.1989 (Ex.P7, pg. 59 LCR) Thus, the defendants are
now precluded from challenging the said decree.
>The findings of the court below that the judgment
and decree dated 23.05.1985 (Ex.A2, pg. 88 LCR) is no
judgment and decree in the eyes of law, are illegal and
perverse. For the following reasons:
* That the said decree is not under challenge in
the present suit by the Defendants by filing any counter
claim etc.
*That there is no such ground taken in the
Written Statement by the Defendants that the judgment &
decree is bad for compliance of Order 20 CPC.
*That during her lifetime Bishno (the original
owner of the property) never challenged it, rather she
affirmed it while being Defendant No. 3 in suit for
permanent injunction.
*That the court has given perverse findings that
the description of the property is not given in the decree,
rather the description has been given in the decree dated
23.05.1985 (Ex.A2, pg. 88 LCR).
*That the decree dated 23.05.1985 (Ex.A2, pg.
88 LCR) clearly pertains to suit property and moreover it is
not the case of the defendants that the said decree is not
with respect to the suit property.
*That though at the risk of repetition it is
humbly submitted that the decree dated 23.05.1985 is
absolutely legal and valid, and as such there is no
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irregularity. However it is humbly submitted that the
Plaintiff or the Defendant have no role in dictating the
contents of the judgment or decree, which is the prerogative
of the Learned Trial Court, therefore, if this Hon'ble Court
considers that there is some irregularity in the judgment &
decree dated 23.05.1985 (supra), then the plaintiff cannot be
punished for the same.
The findings with respect to adverse possession are illegal
and perverse
>A perusal of written statement would reveal
that nowhere word "Adverse" is even mentioned (Pg. 10
LCR). Further, the essential ingredients qua the plea of
adverse possession are not there in the pleadings. The
Defendants have not stated anything as to when they
entered into possession and whether their possession was
open, hostile and was within the knowledge of the original
owner. The date from which the possession became adverse
is also not mentioned.
>That on perusal of the Jamabandi for the year 1977-
78 i.e. Ex. A7 (Pg. 78-79 LCR) would reveal that the
possession of defendant No.1 & 2 is shown as "Gair
Marus!" and in column No.9 the entry "Gair Marusi
Chakotedar" is mentioned. Thus, even as per the revenue
record as the Defendants Chakotedars/Tenant of the earlier
owner.
> That the Defendants No. 1 to 3 had earlier filed
a Civil Suit No. 471 dated 13.08.1985 decided on
01.06.1987 against the present Plaintiffs and the original
owner of the property (i.e. Bishno). The said suit was for
permanent injunction wherein the present Defendants
claimed to be tenants under Bishno. In the said suit the
present Plaintiffs appeared and pleaded that now they are
owners of the suit property.
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> The said civil suit was decided vide judgment
& decree dated 01.06.1987 (Ex.P-2 Pg. 38 LCR), wherein it
was observed in para No. 8 of the said judgment that the
Defendants (who were Plaintiffs in the said suit), are
recorded to be in possession of the suit land as
"Chakotedars". Moreover there was a finding that now the
present Plaintiffs (who were defendant No.1 & 2 in the said
suit), have become owner of the property. The Court also
observed that Revenue record shows the Plaintiffs therein to
be "Chakotedars". However, it was observed as under:
"Since the plaintiffs did not take the suit land
on lease or chakota from Defendants No.1 & 2, they shall
be taken to be in possession of the suit land as unauthorized
occupants".
It was under these circumstances that the Court held that the
Plaintiffs therein i.e. Defendant No. 1 to 3 in the present suit
cannot be termed as "Tenants". However, the Court decreed
the said suit to the extent that the Plaintiffs therein cannot
be dispossessed without following the due process of law.
Resultantly the present suit was instituted on 16.07.1987.
>That it is settled law that once a tenant is
always a tenant and once the possession of the Defendants
No.1 to 3 was permissive the same can never mature into
adverse possession.
>That none of the witnesses of the Defendants
i.e. DW1 to DW5 (Pg. 27 to 29 LCR), have stated anything
regarding ingredients of adverse possession in their
examination in chief. Thus, even in evidence the Defendants
have not tried to prove the plea of adverse possession.
>That DW3 Jora Singh in his cross
examination (Pg. 27 backside LCR), has stated:-
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"Smt. Jangir Kaur alleged that we are the
tenants on the land. She said that we are the owners of the
land'.
>DW4 Gurdev Singh (Pg. 27 LCR), has further
admitted:-
"it is correct that Smt. Jangir & Gurdev Singh
filed suit against Bishno, Sh.Natha and Lal Singh for
permanent injunction on the allegation that they are in
possession of the suit land as Tenand and they should not be
dispossessed from the suit land".
>Similarly DW5 Smt. Jangir Kaur (Pg. 29
LCR), has admitted:-
"I do not know in which capacity we were in
possession of the suit land".
Thus, the findings of the learned trial courts
below regarding the plea of adverse possession are
absolutely illegal and against law.
The relationship of the plaintiffs with Bishno not disputed.
>The original owner Bishno was sister of the
father of the plaintiffs Sh.Natha Singh. The said fact has
been admitted by DW3 Jora Singh (Page 27, LCR).
Moreover, the plaintiffs had proved on record the voter list
of Village Pakka Kalan as (Ex.P5, Page 47 LCR) and the
ration card as (Ex.P6, Page 58 LCR). Moreover, even in
examination-in-chief the plaintiff Sh.Natha Singh has
deposed that Bishno was his father's sister (Page 19 LCR).
The alleged WILL allegedly dated 15.06.1974 not pressed
> The Defendant No.3 alleged one WILL
allegedly dated 15.06.1974 in her favour by Bishno.
> The said WILL however was not pressed
before the Learned Trial Court as is apparent from Pg. 21
Para 23 PB, and the issue of the said WILL was also
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decided against the Defendant No.3 i.e. issue No. 10B (Pg.
22 Para 27 PB)."
2.3 On the other hand, learned counsel representing the
respondents submitted that the decree passed on 23.05.1985 is not a
speaking order and hence, not a decree in the eyes of law. He further
submits that the defendants have perfected their title by way of adverse
possession because the plaintiffs were held to be unauthorized occupants
on 01.06.1987.
3. Discussion:-
3.1 This Court has considered the submissions made by the
learned counsel representing the parties.
3.2 Upon careful study, the following reasons have been
recorded by the First Appellate Court:-
i) The judgment passed on 23.05.1985 shows non-application
of mind.
ii) A judgment of the court should contain a concise statement
of facts, points for determination and decision thereon
alongwith reasons for such decision. However, the
judgment dated 23.05.1985 fails to fulfill the aforesaid
requirement.
iii) The judgment must contain the number of the suit, names
and description of the parties alongwith their addresses and
particulars of the claim and the relief granted. However, the
decree has not been drawn in accordance with law and the
rules.
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iv) In the body of the decree, it is nowhere mentioned with
regard to details of the land
v) The plaintiffs have not placed on record copy of the plaint
and written statement filed by Smt. Bishno in the suit filed
in the year 1985 and it is impossible to connect the suit land
with the decree passed in the year 1985.
vi) It is not the function of the court to presume that the decree
dated 25.03.1985 pertains to the suit land.
vii) In the absence of the specific pleadings, it is not appropriate
to accept the plaintiffs' case that they are heirs of Smt.
Bishno.
viii) The defendants are in possession of the land for over 12
years which has not been denied and therefore, they have
become owner by way of adverse possession.
3.3 The First Appellate court's reason no.1 overlooks Order XII
Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as
'CPC') which enables passing of judgments on the basis of admissions
in the pleadings or otherwise at any stage of the suit. Basically, this is an
enabling provision to dispose of the suit partially or absolutely in an
expeditious manner. Once the court comes to a conclusion that the
parties to the suit are not at issue or in other words, there is no dispute of
facts between the parties which require adjudication, then the court can
proceed to pass the judgment on the basis of admissions of fact. These
admissions of fact can be made either in the pleadings or otherwise.
Such judgment can be passed, at any stage, either on the application of
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any party or on its own motion. Even disposal of a part of the suit is
permissible under this order. In that context, the definition of judgment
based upon admissions is required to be examined. The expression
judgment has been defined in Section 2(9) CPC which means the
statement given by the Judge on the grounds of a decree or order. Once
the court comes to a conclusion that the judgment is required to be
passed in accordance with Order XII Rule 6 CPC, recording of detailed
reasons for arriving at such conclusion is not mandatory, though is
ideally required. However, in the subsequent proceedings, the court is
not expected to ignore a judgment on the ground of a technical reason,
which is not mandatory. If we dissect the definition of the expression
'judgment' it means the statement given by a Judge on the grounds of a
decree. In a consent decree passed under Order XII Rule 6 CPC, the
court is required to make only a statement to the effect that the parties
are not at issue. That can be expressed by giving a concise form, which
does not necessarily requires detailed reasons by the Judge.
3.4 Undoubtedly, the Presiding Officer, while passing the
decree dated 23.05.1985, has used the expression collusive decree,
however, in substance, this was a consent decree passed under Order XII
Rule 6 CPC. The expression collusive involves secret and unlawful
cooperation aimed at deceiving or giving an advantage over others.
Hence, it was not appropriate for the Presiding Judge to use the word
"collusive" while passing the judgment. However, this may be due to
oversight or lack of appropriate word in the vocabulary. However, it
cannot be the only reason to ignore the judgment passed by the court on
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the basis of consent. Smt. Bishno, during her lifetime, never questioned
the aforesaid judgment. The defendants are not preferential heirs of
Smt. Bishno. On the other hand, the plaintiffs are closely related to Smt.
Bishno. Plaintiff no.1 is her brother's son whereas plaintiff no.2 is her
brother's grandson whereas on the other hand, the defendants have failed
to prove that they are having any preferential right over the plaintiffs. In
these circumstances, the court is required to decide whether a small
mistake by the court while passing the judgment should result in
depriving the plaintiffs from a valuable right, which came to vest in
them pursuant to the judgment passed by them. In my opinion, the
answer would be in the negative. In a subsequent proceeding, the court
is not expected to ignore the previous judgments only on procedural
errors.
3.5 Similarly, trial court's reason no.2 is also not appropriate.
Ideally, a judgment of the court is required to give concise statement of a
case, however, when there is no quench for determination on account of
admissions of fact, the court is not required to give detailed reasons.
However, in a subsequent suit, before ignoring or setting aside the
previous judgment, the court is required to find as to whether there are
grounds to set aside a contract entered into the parties. A consent decree
passed by the court is based upon a contract or an agreement arrived at
between the parties in the facts of the case which is approved by the
court. Such contract is not liable to be ignored unless the court finds any
of the ground specified in the contract Act for ignoring or setting aside a
previous contract, particularly when it has also been approved by the
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court in its previous judgment. Moreover, it is not appropriate to
overlook the judgment of the court for a small or insignificant
procedural error, which do not go to the root of the case.
3.6 The First Appellate Court's reason no.3 is factually
incorrect. A bare look at the decree passed by the court on 23.05.1985
Ex.A-2 would establish that the decree drawn by the court contains suit
number, date of institution, decision, name and addresses of the party to
the suit, description of the suit land involved in the suit and the claim
and the ultimate order passed by the court. The expression decree has
been defined by the CPC under Section 2(2) CPC which means a formal
expression of an adjudication which conclusively determines the rights
of the parties with regard to all or any of the matter in controversy in the
suit. Hence, the First Appellate Court has wrongly recorded that the
decree does not contain the number of the suit, name or description of
the parties and particulars of the claim and the relief granted.
3.7 Similarly, the First Appellate Court's reason no.4 lacks
substance and is not sustainable because the decree as prepared by the
office is ultimately signed by the Presiding Judge, which includes case
number and all other details including description of the suit property.
Hence, the decree has to be read in a comprehensive manner and should
not only be confined to the body of the decree, which only contains the
conclusion drawn. Moreover, before setting aside or ignoring a
judgment of the court, the test to be applied is different and there is a
requirement of passing the judgment. It is not appropriate for the court
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to ignore the previous judgment on the ground that such judgment and
decree is not an ideal judgment.
3.8 Similarly, First Appellate Court's reason no.5 is incorrect. It
was the defendant, who was challenging the correctness of the judgment
and decree passed by the court on 23.05.1985. Even if the plaintiffs did
not file the copy of the plaint or the written statement of the previous
suit, the defendants could have filed it. The First Appellate Court has
erred while observing that it is not possible to connect the land in
question, particularly when in the decree the detailed description of the
suit land alongwith khewat, khatoni, khasra numbers and the name of the
village where the land is located has been given. There was in fact no
dispute between the parties with regard to the identification of the suit
land. It was not appropriate for the court to make out a new case for the
defendants. On the same reasons, the First Appellate Court's reason
no.6 is also not sustainable.
3.9 Similarly, the First Appellate Court's reason no.7 is also not
appropriate because the failure to get the land mutated does not
adversely impact their substantive rights. The mutation is only for the
purpose of upgradation of record and it does not in itself determines the
rights of the parties.
3.10 The last reason assigned by the First Appellate Court is
again perverse. Firstly, the First Appellate Court has overlooked that
defendant no.3 in 1988 filed civil suit no.120 of 1988 to challenge the
decree dated 23.05.1985, which was withdrawn on 26.08.1989.
Secondly, before granting a decree for declaration that an unauthorized
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person has become owner by way of adverse possession, the court is
required to examine the date or the month or the year when the
possession of the party became adverse. While granting declarative
decree to the effect that some one has become owner by way of adverse
possession, the court is required to examine the well known test laid
down by the Supreme Court in Saroop Singh vs. Banto AIR 2005 SC
4407. The person claiming adverse possession is required to prove the
following requirements:-
i) on what date he came into possession
ii) what was the nature of the possession
iii) whether the factum of possession was known to the
other party.
iv) how long is the possession continued.
v) his possession was open and undisturbed.
3.11 The continuation of possession during the pendency of the
litigation is not considered as undisturbed possession. The permissible
possession howsoever long cannot be the basis to grant adverse
possession. In fact, the adverse possession implies that it commences
from and is maintained against the right. In this case, the court
overlooked that in the jamabandi for the year 1977-78, the possession of
the defendants is shown as Gair Marusi and in column no.9, the entry is
Gair Marusi Chakotedar, which implies that the defendant no.1 and 2
were inducted as tenants by the previous owner. Moreover, defendants
no.1 to 3 in civil suit no. 471 dated 13.08.1985 themselves claim to be
tenants under Smt.Bishno. Moreover, on a careful reading of the
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judgment and decree passed on 01.06.1987, it becomes evident that the
court arrived at a conclusion that defendant no.1 to 3 were in possession
of the land as tenant under Smt.Bishno but not under the plaintiffs.
However, the possession of the defendants no.1 to 3 cannot be termed as
unauthorized occupants entitling them to claim title on the basis of the
adverse possession. Moreover, none of the defendants have proved
ingredients of the adverse possession while appearing in evidence. In
fact, DW3 Jora Singh has admitted that Smt. Jangir Kaur defendant no.3
claimed that defendants are tenants on the land. Similar is the statement
of DW4 Gurdev Singh. DW5 Smt. Jangir Kaur has admitted that she
does not know in which capacity they are in possession of the property.
3.12 It may be noted here that even in the absence of decree, the
plaintiffs are proved to be natural heirs of Smt. Bishno. The relationship
of Smt.Bishno is not disputed which stands corroborated by over-
whelming evidence. Defendant no.3, although propounded the Will
dated 15.06.1974, allegedly executed by Smt. Bishno in her favour,
however, this issue was never pressed before the trial court. In these
circumstances, the First Appellate Court has erred in dismissing the
plaintiff's suit for possession based upon title.
3.13 Moreover, the courts below have overlooked the fact that in
civil suit no. 471 dated 13.08.1985 filed by Gurdev Singh, Sh.Sukhdev
Singh and Jagir Kaur, Sh.Natha Singh, Sh.Labh Singh and Smt.Bishno
filed a joint written statement wherein it was specifically stated that now
defendant no.1 and 2 are owners by virtue of the court decree. In other
words, Smt. Bishno admitted the correctness of the decree, which has
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been passed on 23.05.1985 while defending the subsequent suit filed by
the defendants. The aforesaid suit was decided on 01.06.1987. During
those proceedings, which remained pending for nearly 2 years, Smt.
Bishno never disputed the correctness of the consent decree passed on
23.05.1985. Thus, it is safe to conclude that during her lifetime Smt.
Bishno never claimed that the decree passed on 23.05.1985 was result of
misrepresentation, fraud, coercion on any ground on which the contract
can be avoided.
4. Decision:-
4.1 Consequently, the judgment passed by the courts below are
set aside while decreeing the plaintiff's suit for the grant of possession.
The Regular Second Appeal stands allowed.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
03.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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