Punjab-Haryana High Court
(O&M) Jai Narain Etc vs Sultan Etc on 1 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:080845
RSA-3125-1985 (O&M) 1
145 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-3125-1985 (O&M)
Reserved on : 04.04.2024
Pronounced on : 01.07.2024
Jai Narain (deceased) through his Lrs
and another ...Appellants
Vs.
Sultan (deceased) through his Lrs
and others ...Respondents
CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Chetan Mittal, Senior Advocate with
Mr. Kunal Mulwani, Advocate;
Ms. Shifali Goyal, Advocate;
Ms. Deveki Anand Sullar, Advocate;
Mr. Iranpreet Singh, Advocate
Mr. Gurmandeep Singh Sullar, Advocate
for the appellants.
Mr. Ajay Jain, Advocate
for respondent No.1.
Mr. J.P. Jangu, Advocate
for respondent No.3(ii).
Mr. Amit Jain, Senior Advocate with
Mr. Chetan Slathia, Advocate
for respondent No.3 (iii) (iv) and (vii).
Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Akshay Jindal, Advocate;
Mr. Pankaj Gautam, Advocate and
Ms. Bhavya Vats, Advocate
for respondent No. 4(i) to (iv).
***
ANIL KSHETARPAL, J.
1. In this regular second appeal, the plaintiffs assail the correctness
of the First Appellate Court's judgment which in turn has reversed the
judgment passed by the trial Court.
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2. On 11.11.2013, the following substantial questions of law were
framed:-
"1. Whether the alleged decree in favour of the plaintiffs
secured in the presence of their father defeat the right
of the defendant, who claimed a right to the property
as a heir to the father by treating the property as
falling to the estate of father remaining undisposed?
(ii) Whether the property was joint family property in
which the defendant had a share and the father could
not have therefore lawfully consented to a decree
being passed in favour of the plaintiff without the
defendant being made a party to the suit?"
3. On 10.02.2016, the Regular Second appeal was partly allowed
without answering the substantial questions of law. Hon'ble Supreme Court
has remitted the matter back to this Court for deciding afresh vide order dated
16.09.2019. That is how the matter has come up for final disposal to this Court.
4. It will be noted here that a Five Judge Bench of the Supreme Court
in Pankajakshi (Dead) through LRs. vs. Chandrika and others (2016) 6 SCC
157 has held that regular second appeals in the State of Punjab, Haryana and
Union Territory, Chandigarh are filed under Section 41 of the Punjab Courts
Act and not under Section 100 of the Code of Civil Procedure,1908. Hence,
there is no requirement of framing the substantial questions of law as required
under Section 100 of the Code of Civil Procedure, 1908 and the regular second
appeals can be decided under Section 41 of the Punjab Courts Act, 1918.
5. In order to comprehend the issues involved in the present case,
some relevant facts, in brief, are required to be noticed.
6. To demonstrate the relationship between the parties, a small
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family tree is drawn as under:-
Mehar Chand
(DOD: 1978)
Jai Narayan Dal Chand Sultan Chameli Vidya Chotu
(Son) (Son) (Son) (Daughter) (Daughter) (Daughter)
(Plaintiff 1) (Plaintiff 2) (Defendant 1) (Def No. 2) (Def No. 3) (Def No. 4)
Subhash Krishan & Dewan &
Chander & Ors Ors
Ors
7. Sh. Jai Narain and Sh. Dal Chand filed Civil Suit No. 256 of 1997
claiming that the land measuring 03 Bighas, 16 Biswas and 5 Biswansi is
owned by Sh. Jai Narain to the extent of 2/3rd share, whereas, Mr. Dal Chand
is owner of the remaining 1/3rd share on the basis of oral family settlement.
The suit was filed against Sh. Mehar Chand, who filed admitting written
statement. On 28.02.1977, the consent judgment and decree was passed by the
Civil Court while decreeing the suit. Sh. Mehar Chand expired on 28.4.1978.
On 02.09.1980, Sh. Jai Narain and Sh. Dal Chand filed the second suit for
grant of decree of declaration that they are owner in possession of the land by
virtue of judgment and decree dated 28.07.1977. In this suit also, the plaintiff
claimed the same land i.e. 03 Bighas, 16 Biswas and 5 Biswansi as was in the
previous suit. In substance, the plaintiffs case is based upon the decree dated
28.07.1977. The defendants No. 1, 2 and 3 filed joint written statement
claiming that the decree is null and void and result of fraud. The admission in
the civil suit is not a recognized mode of transfer of the property which could
only be transferred by way of a registered document. As the property is
ancestral and as per custom, Sh. Mehar Chand had no right to alienate the suit
property without aliening legal necessity. The decree has never been acted
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upon.
8. Subsequently, the defendants No. 2 to 4 were proceeded against ex
parte. The plaintiffs in order to prove their case examined PW-1-Sh. Jai
Narayan, PW-2-Smt. Chameli Devi, PW3-Smt. Chotu (defendant No.4) and
Sh. Balbir Singh, Advocate who represented Sh. Mehar Chand in the previous
suit. While appearing in evidence the defendant-Sh. Sultan Singh, DW-1 stated
as under:-
"We brothers live separately for the last 21/22
years. The land in suit was purchase by my father with his
own money. The suit land was purchased nearly 16/17
years ago, I do not know the name of the person from who
the land was purchased but he was an agriculturist of
Gurgaon Village.
I did not sow any crop in the suit land, I have
never earned any income from the suit land. Jai Narayan
and Dal Chand have been cultivated and earning income
from the suit land."
9. Upon appreciation of evidence, the trial Court decreed the suit,
whereas, the First Appellate Court has set aside the same on the following
grounds:-
1. In the previous suit, the plaintiffs have themselves asserted
that Sh. Mehar Chand was karta and the property was joint
Hindu Family Property.
2. In the previous suit, there was concealment of fact as the
third brother and three sister were not disclosed.
3. The case set up by the plaintiffs is contradictory as on the
one hand, in the previous suit, the plaintiffs claimed that the
property is joint Hindu family property, whereas, on the
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other hand, in the present suit, they claimed to have
purchased the property in the name of their father.
4 The plaintiffs have not produced any evidence to prove that
it was purchased by their father. The plaintiffs have led no
evidence to prove that what was the total sale consideration
and who paid the sale consideration while purchasing the
land.
5. The judgment passed in Harpal Singh and another vs. Ram
Piari and others, 1981, PLJ 492 is not applicable.
6. The plaintiff No.1 in his examination-in-chief has admitted
that the suit was filed on the asking of Sh. Mehar Chand,
therefore, it is proved that the previous suit was collusive.
10. Heard the learned counsel representing the parties at length and
with their able assistance perused the written note of submissions filed by the
learned counsel representing the appellants as well as learned counsel
representing respondent No.1 alongwith the requisitioned Lower Court Record.
11. The concept of the family settlement and the decrees passed
acknowledging the family settlement is no new. In 'Sahu Madho Das and
others vs Pandit Mukand Ram and another', AIR 1955, SC 481, the Court
held that a family settlement based upon an assumption of antecedents title of
some sort between the family members is valid. This concept was further
advanced in 'Ram Charan Das vs Girjanandini Devi And Ors', AIR 1966,
SC 323, where family settlement was acknowledged as concept of settling past,
present and for future disputes. In 'Tek Bahadur Bhujil vs Debi Singh Bhujil
And Ors', AIR 1966, SC 292, the Court held that the registration of family
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settlement is necessary only if it is in writing. The Supreme Court held that a
possible claim or a semblance of claim is sufficient to acknowledge family
settlement. A three Judge Bench in 'Kale & Others vs Deputy Director Of
Consolidation Ors', 1976, SC 807 again held that even a possible claim is
sufficient to acknowledge the family settlement. Thereafter, the dispute arose
the requirement of registration of consent decrees acknowledging family
settlement. This matter has been now finally settled by the Hon'ble Supreme
Court in 'Muhommad Yusuf and others Vs. Raj Kumar and others', 2020,
10 SCC 265, 'Gurcharan Singh and others vs Angrez Kaur', 2020 [10]
SCC, 250 and 'Khushi Ram Vs. Nawal Singh', 2021, SCC online, SC 1-8. In
Khushi Ram's Case (Supra) the lady had suffered decree in favour of her
brother's children and on the basis of family settlement. She had received the
property from her father-in-law. The Court held that the consent decree does
not require registration and her nephew's had antecedent title.
12. In this case, the decree has been suffered by the father in favour of
his two children. They had a possible claim of inheritance. A Division Bench
of Punjab and Haryana High Court in 'Gurdev Kaur And Anr. vs Mehar
Singh And Ors', 1989, PLJ, 182 held that a consent decree can be set aside
only on fraud, mis-representation, coercion or unsound mind. Moreover, in a
subsequent round of litigation the Court cannot go behind the decree. The
same view was reiterated by the Division Bench in 'Tej Singh and others vs.
Jagrup Singh and others', 1989, PLJ, 138. The Supreme Court in 'Bhoop
Singh vs Ram Singh Major & Ors', 1995 [5] SCC 709 held that the Division
Bench judgment is good to the extent it lays down the law.
13. The concepts of joint Hindu family and joint Hindu family
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property are different. In this case, the defendant categorically admits that the
suit property was purchased by Sh. Mehar Chand. Hence, the property was not
joint Hindu family property instead it was self acquired property. Hence, the
first reason assigned by the First Appellate Court is erroneous. There cannot be
any better evidence than admission of the defendant. In examination -in-chief
as well as in the cross-examination he has stated that the suit property was
purchased by Sh. Mehar Chand. It is not his case that the suit property was
purchased with the joint Hindu family funds. Hence, the finding is erroneous.
The second reason assigned by the First Appellate Court is also not made out
in the case. First of all, for the purpose of family, joint Hindu family does not
necessarily consist of all the family members. In the previous case, the
plaintiffs were not strangers. They were two sons of Sh. Mehar Chand.
Secondly, it has come on record in the statement of Sh. Sultan Singh that the
members of family started living separately somewhere in the year, 1960-62.
While appearing in evidence in the year 1983, the decedent-Sultan admits that
brothers lives separately for the last 21 to 22 years. In these circumstances, it is
proved that Sh. Sultan Singh was living separately. Hence, two sons of Sh. Jai
Narayan could be living with their father. Moreover, the statement recorded in
the Court carries a greater sanctity. It cannot be brushed aside unless some
fraud is proved beyond reasonable doubt.
14. In the previous suit, while appearing in an evidence, the
defendant-Sh. Mehar Chand has stated that he has no other heir. He is not
referring to any other natural heir. He has just stated that he does not have any
other heir. It means that he does not consider Sh. Sultan to be heir for the
purpose of this suit land. Hence, there was no concealment which amounts to
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fraud with the Court.
15. Furthermore, a Co-ordinate Bench in 'Ram Kumar vs.
Ramleshwar Lal', 2007 (Vol 58) RCR (Civil) 72 has held that failure to
disclose the names of other family members does not adversely impact the
consent decree by the Court, which is as good as decree passed by the Court
after contest.
16. The reason No.3 assigned by the First Appellate Court is required
to be understood in a different context. Although, in the previous case, the
plaintiffs have asserted that they constitute a joint Hindu family and the
property is joint Hindu Family property, however, Sh. Sultan Singh while
appearing in evidence has admitted that the property is self acquired. The
admission of the defendant is categoric. In these circumstances, it is the
admission, which is required to be relied upon in place of the pleadings.
17. The First Appellate Court's fourth reason is not relevant. Once, the
defendant-Sh.Sultan Singh has stated that the property was purchased by
Sh. Mehar Chand, with his own money, the defendant had no pre-existing right
in the same but for a possible succession on account of natural succession after
the death of Sh. Mehar Chand. During life time of Sh. Mehar Chand, Sh.
Sultan Singh had no right. In such circumstances, the defendant had no re-
existing right in the property. Hence, the plaintiffs are not required to prove
that the land was purchased with their money.
18. The First Appellate Court has also distinguished the judgment
passed in Harpal Singh's case (supra). This Court has already noticed that the
Division Bench of this Court has held that the consent decree is a valid decree
until it is set aside and it can only be set aside if it is proved to have been
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obtained by fraud misrepresentation, concealment or coercion.
19. The last reason assigned by the First Appellate Court also lacks
substance because in such suit the consent or admission of the plaintiffs claim
is not strange. Such decrees are not called collusive. Order 12 Rule 6 of the
Code of Civil Procedure, 1908, provide for judgment on admissions. Hence, it
was wrong on the part of the First Appellate Court to style the decree as
collusive.
20. In these circumstances, the question No.1 does not arise because
defendant has no right in the property, hence, the question of defeating his right
does not arise. Even, question No. 2 does not arise because the property is
proved to be purchased by Sh. Mehar Chand and therefore, Sh. Sultan Singh
had no share in the same. It was not a joint Hindu family property but self
acquired property.
21. Keeping in view the aforesaid discussion, the result is inevitable.
The Judgment and decree passed by the First Appellate Court and that of the
trial Court is restored. The plaintiffs' suit shall stand decreed.
22. The appeal is allowed.
23. The plaintiffs have also filed application for additional evidence,
which is not required to be disposed of in view of the fact that their appeal has
already been accepted.
24. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
JUDGE
01.07.2024
neeraj
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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