Punjab-Haryana High Court
Harbhajan Singh vs Tara Singh on 8 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:047448
RSA-3051-1994 (O&M)
and other connected case 1 2024:PHHC:047448
112 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1.RSA-3051-1994 (O&M)
Sh.Harbhajan Singh and another
....Appellants
Versus
Tara Singh and others
..Respondents
2.RSA-2043-1995 (O&M)
Sh.Harbhajan Singh and another
....Appellants
Versus
Sh.Malkiat Singh and another
..Respondents
Date of decision: 08.04.2024
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. K.S.Dadwal, Advocate for the appellants
Mr.Salil Bali, Advocate for the respondents
ANIL KSHETARPAL, J (Oral)
1. With the consent of the learned counsel representing the
parties, two connected Regular Second Appeals shall stand disposed of
by this common order.
2. In both the appeals, the appellants are the plaintiffs. They
filed two different civil suits; civil suit no.42 of 09.02.1987 for the grant
of decree of declaration that they are owners in possession of the suit
land located in Village Pandori Mail and for the grant of decree of
declaration that the sale deed dated 21.01.1987 executed by defendant
no.2 and 3 in favour of defendant no.1 is illegal, null and void thus,
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Neutral Citation No:=2024:PHHC:047448
RSA-3051-1994 (O&M)
and other connected case 2 2024:PHHC:047448
ineffective upon the rights of the plaintiffs. The second suit i.e civil suit
no.23 of 1987 was filed by the same plaintiffs for the grant of decree of
permanent injunction with respect to property located in Bairo Kangri.
In substance, the dispute is with regard to the property left behind by
Sh.Santa Singh, who was the common ancestor of the parties. He had
four sons namely Sh.Harbhajan Singh, Sh.Didar Singh, Sh.Malkiat
Singh and Sh.Avtar Singh. Sh.Harbhajan Singh and Sh.Didar Singh are
the plaintiffs in both the suits. It is the plaintiffs' case that Sh.Avtar
Singh was given in adoption to Sh.Milkha Singh, brother of Sh.Santa
Singh. Defendant no.1 claims to be a bonafide purchaser of the
property. Both the suits were consolidated and disposed of vide a
common judgment passed by the trial court on 08.02.1991. The trial
court partly decreed the plaintiffs' suit for the grant of decree of
declaration and it was declared that Sh.Avtar Singh was adopted and he
was not entitled to any share in the property left behind by Sh.Santa
Singh. However, the Will propounded by Sh.Harbhajan Singh and
Sh.Didar Singh was disbelieved. Consequently, it was held that
Sh.Harbhajan Singh, Sh.Didar Singh and Sh.Malkiat Singh will get
1/3rd share each in the property left behind by Sh.Santa Singh.
Consequently, the sale deed to the extent of 1/4th share was declared
ineffective.
3. The plaintiffs filed the first appeal on 23.03.1991. At the
time of final arguments in the appeal, objection was taken by the
respondents that the plaintiffs were required to file two appeals. The
First Appellate Court held that two appeals were required to be filed as
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Neutral Citation No:=2024:PHHC:047448
RSA-3051-1994 (O&M)
and other connected case 3 2024:PHHC:047448
two separate decrees were drawn in both the suits. Thus, the First
Appellate Court held that the finding recorded in the injunction suit
operates as res judicata against the plaintiffs. The First Appellate Court
also made casual observation with regard to the validity of the Will.
4. At the advice of the counsel, the plaintiffs filed a separate
appeal on 02.02.1995, which has been dismissed on the ground of delay.
5. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook alongwith the
requisitioned lower court record.
6. Learned counsel representing the appellants submits that the
First Appellate Court has erred in dismissing both the appeals without
appreciating the facts and circumstances of the present case. He submits
that appellants being rustic villagers were not expected to know that two
separate appeals were required to be filed. He submits that the moment
the first appeal was dismissed by the First Appellate Court on
16.09.1994, the appellants (plaintiffs) consulted a counsel to file the
Regular Second Appeal. They were advised to file the first appeal in the
second suit also, which was filed on 02.02.1995. He submits that a
valuable right of the appellants is sought to be defeated on a hyper
technical ground. Hence, this Court should remand the matter back to
the First Appellate Court to decide the appeals afresh.
7. Per contra, the learned counsel representing the defendants
submits that the delay in filing the appeal is nearly 4 years in the
injunction suit, which should not be condoned.
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RSA-3051-1994 (O&M)
and other connected case 4 2024:PHHC:047448
8. This Court has considered the submissions made by the
learned counsel representing the parties.
9. It appears that the learned counsel representing the plaintiffs
was not clear about the legal position to the effect that if in two separate
suits, two separate decrees have been passed, then two separate appeals
are required to be filed. However, that cannot be the only reason to
defeat the plaintiffs' right to file the appeal. The First Appellate Court is
the last court for appreciation of facts and evidence. It is a valuable right
available to a party to assail the judgment and decree, which has been
passed by the trial court. Section 5 of the Limitation Act, 1963 enables
the First Appellate Court to condone the delay if sufficient explanation
for delayed filing of the appeal has been furnished. In this case, the
plaintiffs filed the first appeal in the injunction suit when they were
advised by the High Court counsel to file the appeal. In these
circumstances, the First Appellate Court was expected to take a holistic
view of the matter while appreciating the predicament of the plaintiffs.
The view taken by the First Appellate Court is myopic.
10. Though the learned counsel representing the respondents is
correct in contending that the First Appellate Court has also made
observation with regard to the validity of the Will, however, it is evident
that the aforesaid discussion is in a casual manner, particularly when the
court had formed an opinion that the appeal was barred by principle of
res judicata on account of failure of the plaintiffs to file the appeal
against the judgment and decree passed in the connected suit. The First
Appellate Court is required to re-appreciate the evidence thoroughly.
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Neutral Citation No:=2024:PHHC:047448
RSA-3051-1994 (O&M)
and other connected case 5 2024:PHHC:047448
However, the First Appellate Court has just made an observation while
upholding the findings of the trial court of doubting the correctness of
the Will.
11. Keeping in view the aforesaid facts, both the appeals are
allowed. The judgment passed by the First Appellate Court on
16.09.1994 as well as on 28.07.1995 are set aside while remitting the
matter back to the First Appellate Court to decide both the appeals
afresh. The delay in filing the first appeal in the injunction suit shall
stand condoned. The parties through their counsels are directed to
appear before the First Appellate Court on 08.05.2024.
12. All the pending miscellaneous applications, if any, are also
disposed of.
08.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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