Punjab-Haryana High Court
Chaman Singh And Another vs Karnail Singh And Others on 26 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 1 2024:PHHC:057667
133 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-2841-2022 (O&M)
Date of decision: 26.04.2024
Chaman Singh and another
....Petitioners
Versus
Karnail Singh and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Ms. Ashmeen Kaur and
Ms. Khushi Suryavanshi, Advocates for
Mr.Lupil Gupta, Advocate for the petitioners
Mr.Rajiv Joshi and
Ms. Manjari Joshi, Advocates for respondent no.11
ANIL KSHETARPAL, J (Oral)
1. In this revision petition, the plaintiffs assail the correctness
of rejection of their plaint by the trial court vide order dated 25.05.2018
which in appeal, has been affirmed by the First Appellate Court.
2. In order to comprehend the issues involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. The plaintiffs have filed a suit for declaration. Para 15 of
the plaint reads as under:-
"15. It is therefore prayed that a
judgment and decree for declaration to the effect that
execution proceedings in execution No.72/2008
decided by the Hon'ble Court Sh.Amandeep, CJJD
Jagraon on 22-12-2014 and subsequent misc
applications therein decided by the Hon'ble Court of
Ms. Anurada CJJD Jagraon decided on 02-3-2016
1 of 7
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 2 2024:PHHC:057667
and the auction proceedings dated 17-8-2014
conducted in the said execution proceedings and the
sale deed bearing Vasika No.476 dated 09-9-2016
and mutation No.911 of village Bahadur Ke,
pertaining to 8k-0M land being 1/3 share out of land
measuring 24 k-0M comprised in khata no.78/95,
Mustil No.31, Killa no.1,2 &3 as per jamabandi for
the year 2012-13 of village Bahadar Ke, Tehsil
Jagraon District Ludhiana are illegal, null and void
and liable to be set aside and do not effect the rights
of the plaintiff in suit land and is the result of
collusion between the defendants No.5 to 11 and also
the result of fraud, practiced upon the court by
defendants No.5 to 11 in the said execution and
misuse of process of law with a consequential relief
for grant of permanent injunction restraining the
defendants from interfering in any way or
dispossessing the plaintiffs illegally and forcibly from
land measuring 12 K-0M land comprised in Mustil
no.31, killa no.2, (8K-0M), 1(1K-0M eastern side), 3
(1K-0M Western side), 10 (2K-0M) situated at village
Bahadar Ke, Tehsil Jagraon, District Ludhiana
otherwise then in due course of law as the plaintiffs
are in possession of suit land on the basis of
agreement of possession dated 15.12.2002 executed
by Gurnam Singh s/o Labh Singh resident of Village
Baghian for a consideration of Rs.90,000/- which the
Gurnam Singh received under the agreement and
delivered possession to the plaintiff as the plaintiffs
are entitled to protect their possession by the doctrine
of part performance under section 53 A of Transfer of
Property Act on the basis of oral and documentary
evidence.
2 of 7
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 3 2024:PHHC:057667
Any other additional alternative relief which this
Hon'ble Court deemed fit may also be granted in
favour of plaintiffs and against the defendant."
4. In substance, the plaintiffs are claiming that Sh.Gurnam
Singh, the previous owner, on receipt of the entire sale consideration
entered into an agreement of possession cum sale in their favour. The
trial court, while exercising powers under Order VII Rule 11 of the Code
of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has rejected
the plaint with the following observations:-
"So, in the present case, plaintiffs have
only sought the declaration that the proceedings o the
civil court be declared null and void, but they have
not sought further declaration to the effect that they
are in owner in possession of the suit property and so
further, in view of above-discussion, it is also clear
that the plaintiffs in the present case have failed to
prove their possession and as such, the present suit is
hit by the Provisions of Section 34 of Specific Relief
Act, 1963 and as such, the same is not maintainable."
5. The First Appellate Court has dismissed the plaintiffs'
appeal while making the following observations:-
"After giving my anxious thoughts to the
rival contentions and perusal of pleadings and
evidence, this court has to find out that whether the
findings recorded the learned lower court on the
controversy is sustainable or not. The appellants
specifically pleaded that they are in possession of the
suit property as they had entered into one agreement
to sell with Gurnam Singh on 15.10.2000 and they
3 of 7
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 4 2024:PHHC:057667
had paid the entire sale consideration to said
Gurnam Singh. But this averments of the plaintiffs is
not digestible as if the plaintiffs had actually entered
into an agreement to sell with Gurnam Singh and had
paid the entire sale consideration to him then why
they had not got the sale deed executed in their
favour. Perusal of agreement to sell, it is clear that it
is not registered document and when it is not
registered document then it cannot be used to prove
this fact that the possession of the property has been
transferred from Gurnam Singh to the plaintiffs
through this document. The plaintiffs are seeking a
declaration the proceedings of the civil court be set
aside, Further perusal of the court proceedings shows
that the executing court conduce the proceedings as
per the decree passed the trial court. It is well settled
law that executing court cannot go beyond the decree.
The plaintiffs has no right to challenge the decree as
well as proceedings while filing the present suit. The
plaintiffs only can file the objection during the
pendency of execution proceedings. But the plaintiffs
did not file any objection at that time. Section 34 of
Specific Relief Act, 1963 says that any person entitled
to any legal character, or to any right as to any
property, may institute a suit against any person
denying, or interested to deny, his title to such
character or right and the court may in its discretion
make therein a declaration that he is so entitled,
provided that no court shall make any such
declaration where the plaintiff being able to seek
further relief than a mere declaration of title, omits to
do so. In the present case plaintiffs have only sought
the declaration that the proceedings of the civil court
4 of 7
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 5 2024:PHHC:057667
be declared null and void, but they have not sought
further declaration to the effect that they are in owner
in possession of the suit property. So in view of above
discussion the suit of the plaintiffs is not
maintainable. The learned lower court rightly
rejected the plaint of the plaintiffs. Hence, there is no
merit in the submissions put forth by Ld. Counsel for
the appellants. Consequently, the findings delivered
on the controversy is found to be well reasoned, legal
and speaking and as such, the same is hereby
affirmed."
6. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook.
7. Section 34 of the Specific Relief Act, 1963 (hereinafter
referred to as '1963 Act') enables any person to file a suit seeking
declaration of status or to any right as to any property whereas Section
31 provides for the cancellation or annulment of a written instrument.
Proviso to Section 34 lays down that where a plaintiff is able to seek
further relief than a mere declaration of title and he omits to do the same,
the court may refuse such declaration.
8. In this case, the plaintiff has sought decree of declaration
that the judgment and decree passed in a previous suit was result of
collusion between defendant no.5 to 11 and also result of fraud practised
upon the court. A prayer for consequential relief of injunction was also
made because the plaintiffs are claiming to be in possession of the
property. The trial court has not granted an opportunity to the plaintiffs
to prove their case. While making sweeping observations that the
5 of 7
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 6 2024:PHHC:057667
plaintiffs have failed to prove their possession, the Courts have
overlooked that the plaintiff has not been given opportunity to prove his
case. Similarly, the First Appellate Court has dismissed the appeal while
observing that the averments of the plaintiffs are insubstantial and based
on whims and fancies and the agreement to sell is not registered. No
reference to the statutory provision has been made that mandates an
agreement to be registered. Even otherwise, the plaintiffs' case could be
considered in the context of Section 53-A of the Transfer of Property
Act, 1882. Rejection of the plaint has serious consequences, as it results
in dismissal of the suit without permitting the parties to prove their case.
Hence, a significant responsibility lies on the Presiding Judge to pass
orders rejecting the plaint only if he is certain that the plaint is liable to
be rejected in accordance with the grounds enlisted under Order VII
Rule 11 CPC. The First Appellate Court is presided over by a member
of Superior Judiciary, who has years of experience. Still, the First
Appellate Court has overlooked these facts.
9. Learned counsel representing the respondents submits that
the plaintiffs while filing the suit have challenged the execution
proceedings but have not challenged the judgment and decree.
10. This Court has considered the submissions made by the
learned counsel representing the parties. It is not the case of the
defendants that the plaintiffs were a party to the previous judgment and
decree. Hence, they were not required to seek its annulment or
cancellation. They were required to file a suit for declaration which has
been filed. The requirement of challenging the court judgment and
6 of 7
Neutral Citation No:=2024:PHHC:057667
CR-2841-2022 (O&M) 7 2024:PHHC:057667
decree would arise only if Section 31 of the 1963 Act is applicable.
Apart from Section 31, there is no concept of challenging a court's
decree. The plaintiff is required to file a suit for declaration that such
judgment and decree is not binding on his rights. Moreover, the
plaintiffs have already asserted that the judgment and decree is a result
of fraud played upon the court by the defendants.
11. Consequently, the impugned orders passed by both the
courts below are set aside and the suit filed by the plaintiffs is restored to
its original number.
12. The revision petition stands allowed.
13. Needless to observe that the observations made by this
Court or by the courts below in the impugned order shall not be
considered as the final expression on the merits of the case.
14. All the pending miscellaneous applications, if any, are also
disposed of.
26.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
7 of 7
