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
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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
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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
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
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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
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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
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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
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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
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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
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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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