Punjab-Haryana High Court
Ram Dia vs Har Narain And Ors on 3 July, 2024
Neutral Citation No:=2024:PHHC:088618
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) RSA No.2227 of 1990(O&M)
RAM DIA(DIED) THROUGH HIS LR PRITHI
.....APPELLANT
VERSUS
HAR NARAIN THROUGH HIS LRs AND ANOTHER
......RESPONDENTS
(2) RSA No.2314 of 2002(O&M)
RAM DIA
.....APPELLANT
VERSUS
VED PARKASH AND OTHERS
.....RESPONDENTS
(3) RSA No.2873 of 2003(O&M)
RAM DIA AND ANOTHER
.....APPELLANTS
VERSUS
VED PARKASH
.....RESPONDENT
(4) RSA No.391 of 1995(O&M)
RAM DIA(DIED) THROUGH HIS LRs
.....APPELLANTS
VERSUS
VED PARKASH
.....RESPONDENT
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RSA No.2227 of 1990 + 4 cases -2-
(5) RSA No.392 of 1995(O&M)
RAM DIA(DIED) THROUGH HIS LRs
.....APPELLANTS
VERSUS
VED PARKASH
.....RESPONDENT
Reserved on: 20.04.2024
Pronounced on: 03.07.2024
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present: Mr. Adarsh Jain, Advocate,
for the appellant(s).
Mr. Akshay Jindal, Mr. Pankaj Gautam and
Mr. Vijay Veer Singh, Advocates, for the respondents.
****
VINOD S. BHARDWAJ , J.
Involving dispute with respect to the same property and amongst
the same parties, claiming through common predecessor in interest, these five
Regular Second Appeals are being decided together vide a common judgment.
The facts of the respective RSAs and the suits from which they
originate would be elaborated in the subsequent paragraphs, however, for
understanding the entire controversy, it is essential to notice the pedigree table,
as is proved from Ex.PX in civil suit No.438 of 1982 wherefrom RSA No.2227
of 1990 arises.
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Budh Raj
|
|
----------------------------------------------------------------------
| |
| |
Tokha Cheta
| |
| |
----------------------------------- Bhalu
| | |
| | |
Gorkha Munshi |
(Died on 26.9.1983) (Died on 4.6.1978) Ram Dia
1/2 share 1/2 share
The civil suits pertain to the succession to the estate of Gorkha
and Munshi sons of Tokha. In the said background, the factual dispute of each
set of cases is being referred to here-in-after-below:-
Ram Dia(died) through his LR Prithi
Versus
Har Narain through his LRs and another
Plaintiff-appellant Ram Dia is in Regular Second Appeal against
the judgment and decree of dismissal passed by the Additional Senior Sub
Judge, Panipat in civil suit No.438 of 1982 dated 28.04.1988 as well as the
subsequent dismissal of the civil appeal No.29 of 1988 by the court of
Additional District Judge, Karnal vide judgment and decree dated 07.11.1990.
The above civil suit had been filed by Ram Dia son of Bhalu for
declaration to the effect that the consent decree in suit No.296/1980 is null &
void and is not binding on him and that he is owner in possession of the suit
land. It had been averred in the plaint that Gorkha and Munshi sons of Tokha
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were brothers. Munshi had died while Gorkha had renounced the worldly
affairs and took Sanyas 50 years prior to institution of the above civil suit in
August 1982 and that Gorkha had been living in Dera Bij Das Nam Datt Khera
Variman Samadhmanhait Motigir Darah Kalan near Birla Mandir, Kurukshetra
and was known by the name of 'Sindhyagir Chella Siri Jeet Puri'. Plaintiff-
appellant Ram Dia claimed to be nephew of Gorkha and Munshi and to have
become owner in possession of the suit property after the death of Munshi on
04.06.1978, on the basis of registered Will dated 21.04.1976 executed by
Munshi in his favour. It was further claimed that since Gorkha had already
renounced the world and worldly affairs, hence, Munshi had become owner of
the entire estate and that the same was accordingly rightly mutated in favour of
the plaintiff on the basis of the registered Will dated 21.04.1976. He also got
the suit land redeemed by making payment of more than Rs.7500/-, however,
the name of Gorkha continued to appear in the revenue record showing him
owner in joint possession to the extent of half share which is contrary to the
existing facts. It was averred that one Har Narain son of Lachhmi Narain
Mukhija had instituted a civil suit No.296 of 1980 for seeking specific
performance of an agreement dated 09.12.1978 to execute the lease deed for a
period of 70 years against Gorkha(respondent-defendant No.2 herein) and was
allegedly compromised on 02.06.1980 leading to passing of the consent
decree, which is a subject matter of challenge in the instant civil suit. It was
further averred that one Ved Parkash(defendant-respondent No.3) intended to
purchase the suit land standing in the name of Gorkha, on the basis of an
agreement dated 12.07.1979, whereas Gorkha was not competent to enter into
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any agreement having already renounced the world. To overcome the law of
pre-emption, Ved Parkash, in collusion with Har Narain, chose to devise a way
out and by execution of a fraudulent lease-deed obtained the decree dated
02.06.1980 in civil suit No.296/1980 to defeat the rights of the plaintiff. The
said decree was thus sought to be annulled, being void-ab-initio, inoperative
and not binding on the rights of the appellant-plaintiff Ram Dia. It was further
pleaded that after the passing of compromise decree dated 02.06.1980, Ved
Parkash (respondent-defendant No.2 herein) got executed two sale-deeds on
02.06.1981 and 09.07.1981 in his favour which were pre-empted by the
appellant-plaintiff on the ground of being a co-sharer. The respondent-
defendant No.1-Har Narain sought execution of the said collusive decree in
March 1982 and claimed for delivery of physical possession of the suit land,
after lapse of considerable time, hence, leading to filing of the present suit.
The validity of the decree dated 02.06.1980 was challenged on the following
grounds:-
a) That Gorkha having renounced the worldly affairs had no right to
execute agreement to lease the suit land as all his subsisting proprietary rights
in the land ceased to exist on his renunciation of worldly affairs and entering
the religious order by taking Sanyas;
b) That the decree was collusive and maliciously aimed to deprive the
appellant-plaintiff from seeking enforcement of his right to seek pre-emption
of the suit land;
c) Gorkha was neither competent to sell nor competent to enter into any
agreement of sale or lease as he would be presumed to be civil dead and have
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renounced his right over land on taking Sanyas;
d) The appellant-plaintiff, being owner in possession of the suit land, was
not bound by the collusive decree to which he was not a party;
e) Even if the lease-deed is not declared as forged, yet, the same can be
held valid and binding only to the extent of half share of Gorkha, however, the
actual physical possession of the land cannot be delivered to Har Narain for
want of partition;
f) The suit land had high value, however, the same was let out at a meager
annual rent of Rs.2000/- which gives rise to a suspicious circumstance about
the validity and genuineness of the lease agreement as well as the decree;
g) The compromise based decree is collusive and fraudulent and is hence
not binding on the rights of the appellant-plaintiff;
i) The validity of Rapat roznamcha dated 15.05.1982, reflecting delivery
of symbolic possession of the suit land in favour of Har Narain, was also
challenged as being a paper transaction having no force.
Respondent-defendant No.1-Har Narain and respondent-defendant
No.3 Ved Parkash filed a joint written statement contesting the claim of
appellant-plaintiff Ram Dia. A preliminary objection with respect to the locus
standi of the appellant-plaintiff was raised and it was also pleaded that the
appellant-plaintiff was estopped from filing the suit since he had earlier filed a
suit for possession by way of pre-emption relating to the part of the suit land
sold by Gorkha(respondent-defendant No.2) in favour of Ved Parkash. The
claim of ownership and possession of Ram Dia(appellant-plaintiff) over the
suit land was also denied. Hence, the suit was claimed to be barred under
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Section 11, Order 9 Rule 9 as well as under Order 2 Rule 2 CPC. It was
submitted that Gorkha had died on 26.09.1983 and his legal heirs had not been
brought on record. It was also averred that Gorkha had executed a Will
relating to the suit property in favour of one Triveni Jatti, who had not been
impleaded as a party. Dismissal of the suit for non-joinder of necessary parties
was also prayed for.
On merits, it was asserted that Gorkha never renounced the world
or adopted Sanyas. Existence of the Will executed by Munshi in favour of Ram
Dia(appellant-plaintiff) was denied and it was held that Munshi had not opted
to execute the Will in respect of ancestral agricultural land and he had no
competence to execute the will. The other claims made by the appellant-
plaintiff Ram Dia were also denied. It was asserted that Munshi had in fact
died issueless on 04.06.1978 and that Gorkha would succeed to his estate being
a class II heir since Munshi had no other successor, and hence, he became an
exclusive owner in possession of the entire property. It was further stated that
Gorkha had agreed to give the suit land on lease to Har Narain(respondent-
defendant No.1) and that a suit for possession by way of specific performance
of agreement of lease was also filed by him. The same was rightly decreed on
02.06.1980. An agreement to sell was thereafter executed by Gorkha in favour
of Ved Parkash(defendant No.3) and that on execution of such sale, a suit for
pre-emption was filed by Ram Dia(appellant-plaintiff). It is also stated that
pursuant to the decree dated 02.06.1980 for specific performance, the lease
was executed by Gorkha during the execution proceedings and that Ram Dia
has no locus standi to challenge the judgment and decree. The competence of
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Gorkha to enter into agreement of lease and sale was re-asserted.
Gorkha was given up by Ram Dia(appellant-plaintiff) vide his
statement dated 21.05.1984 as Gorkha too had died issueless on 26.09.1983.
Replication was filed denying the averments, objections and
allegations made in the written statement and reiterating the claims made in the
plaint.
On completion of the pleadings, the following issues were
framed:-
"1. Whether the plaintiff is owner in possession of the suit property?
OPP
2. Whether Gorkha had renounced the worldly affairs by adopting
Sanyas as alleged in para No.2 of the plaint. OPP
3. Whether the Will dated 21.04.76 has been validly executed by
Munshi in favour of the plaintiff? If so, to what effect? OPP
4. Whether the plaintiff got the suit land redeemed by making
payment of Rs.6500/- after sanctioning mutation No.1977, dated
8.4.80, if, so, to what effect? OPD
5. Whether the paras 17, 18 and 19 of plaint have not been replied
for by the defendant in W/S? If so, to what effect? OPD
6. Whether the plaintiff has no locus standi? OPD
7. Whether the plaintiff is estopped from filing the present suit?
OPD
8. Whether the suit is barred u/s 11, Order 9 Rule 9, Order 2 Rule
2 C.P.C. in view of P.O. Para 4 of W/S? OPD
9. Whether the suit is liable to be stayed u/s 151 CPC in view of
P.O. para 5 of the W/S? OPD
10. Whether there is no proper and legal plaint in view of P.O. para
6 of the W/S? OPD
11. Whether the suit is bad for non-joinder of parties in view of P.O.
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para 7 of W/S? OPD
12. Whether Gorkha deceased executed any Will in favour of Triveni
Jatti? If so, whether he was competent to make such Will? OPD
13. Relief."
Parties led their respective evidence. Findings recorded and
affirmed on certain issues are now a subject matter of challenge.
While dealing with the issue as to whether Gorkha had renounced
the worldly affairs by adopting Sanyas, as issue No.2, the trial Court recorded
the following findings on the issue:-
a) Appellant-plaintiff Ram Dia did not produce any other villager to
establish adoption of Sanyas by Gorkha especially when his specific claim was
that Gorkha had taken Sanyas before he was born and that he had never seen
Gorkha.
b) There is no mention of any specific date in the plaint regarding Gorkha
renouncing the worldly affairs and taking Sanyas by entering the religious
order. Hence, there was only a bald self-serving statement.
c) Even though it was stated by the appellant-plaintiff Ram Dia that he had
never seen Gorkha, however, in his cross-examination, he admitted that
Gorkha had got Ram Dia and his children challaned in the criminal
proceedings under Sections 107/151 Cr.P.C. and also admitted that Gorkha had
sold some part of the suit land whereupon he had filed a suit for possession by
way of pre-emption. Hence, Ram Dia( appellant-plaintiff) admitted about the
correctness of the sale.
d) The execution of sale by Gorkha, of some part of the suit land, negates
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the assertion of Ram Dia that Gorkha had renounced the world and taken
Sanyas.
e) The trial Court also relied upon Exts.D-23 and D-24 pertaining to
disbursement of compensation to Gorkha for the land acquired and to infer that
Ram Dia admitted Gorkha to be joint owner of the agricultural land since he
never claimed compensation for the acquired land falling to the share of
Gorkha.
f) The jamabandi (Ex.P3) and khasra Girdawari(Ex.P4) show ownership
and cultivation of the agricultural land by Gorkha in the year 1976-77 to
1980-81.
g) Reliance of Ram Dia was only on the order (Ex.P7) referring about
Sanyas which was not conclusive since an appeal (Ex.P5) had already been
filed and further the said order(Ex.P7) was held to be not binding on Har
Narain (respondent-defendant No.1) not being a party to the proceedings.
For the foregoing reasons, it was held by the trial Court that
Gorkha had not renounced the worldly affairs and the issue was decided
against Ram Dia.
While dealing with the issue No.3 pertaining to the Will dated
21.04.1976 executed by Munshi in favour of Ram Dia, the trial Court noticed
that the attesting witness- Nambardar had not been examined in evidence. The
Will was thus rejected as having not been proved as per law, hence, Ram Dia
could not claim title on the basis of the Will, in his favour.
With respect to the issue No.8 as to whether the suit filed by Ram
Dia was barred under Section 11, Order 9 Rule 9 and/or under Order 2 Rule 2
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CPC, it was held that the suit by Ram Dia was barred under Order 9 Rule 9 and
Order 2 Rule 2 CPC for the following reasons:-
i) Reliance was placed on plaint (Ex.D1), amended plaint (Ex.D2),
written statements (Exs.D18 and D19), copies of issues (Ex.D20 and D21)
which established that Ram Dia had earlier filed a civil suit No.243 of 1979
dated 06.06.1979 against Gorkha(defendant No.2) and Ved Parkash (defendant
No.3) for permanent injunction, on similar allegations made in the present suit.
The same was contested and defended by Gorkha on similar grounds and
objections, qua which issues were also framed. Har Narain was even though
not a party in the said suit, however, as he derives his title through Gorkha, his
non-impleadment was held to have no bearing. The said suit was dismissed for
non-appearance of Ram Dia, under Order 9 Rule 8 CPC, vide order dated
26.11.1981 (Ex.D22). It was thus held that the present civil suit No.438 of
1982 was barred under Order 9 Rule 9 CPC.
(ii) It was also stated that the relief claimed in the present suit could
also have been claimed in the previous suit and that there was no separate
cause of action since the decree impugned herein was also in existence at the
time of filing of the previous suit. Ram Dia could have challenged the consent
decree in the earlier suit, however, having not preferred to avail that remedy,
the subsequent suit would be barred under Order 2 Rule 2 CPC.
While dealing with issue No.1 pertaining to whether Ram Dia was
owner in possession of the suit property or not, it was held that since Ram Dia
could not prove to be owner on the basis of the registered Will dated
21.04.1976 executed by Munshi in his favour, hence, Gorkha was entitled to
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inherit the property falling to the share of Munshi, on his demise on
04.06.1978, as per Section 8 of the Hindu Succession Act, 1955. It was also
observed that Ram Dia never claimed his title on the basis of succession and
rather claimed it on the basis of the Will which having not been established, no
fresh case could be made out for Ram Dia for grant of the relief.
On the basis of the findings recorded on the issues above as well
as others, the suit of Ram Dia was dismissed not only on the ground of locus
standi; being barred under Order 9 Rule 9 and Order 2 Rule 2 CPC but also on
the ground that Gorkha was not established to have renounced the world by
adopting Sanyas and by disbelieving the Will dated 21.04.1976 executed by
Munshi in favour of Ram Dia.
Aggrieved thereof, civil appeal No.29 of 1988 was filed. Along
with the appeal, an application was also moved under Order 41 Rule 27 CPC
for leading additional evidence of Amar Singh, the attesting witness.
The Additional District Judge dismissed the application for
leading additional evidence by holding that evidence of Amar Singh is not
required by the court to decide the matter since the parties had already led
evidence and the matter could be decided on the strength of such evidence and
later, by recording the contention that Ram Dia had knowledge of the
witnesses and yet chose not to produce the same in the witness box under the
fear of the witnesses not supporting his case, dismissed the appeal filed by
Ram Dia for the reasons recorded by the Addl. Senior Sub Judge, Panipat.
Aggrieved thereof, Regular Second Appeal No.2227 of 1990 had
been filed alongwith application for leading additional evidence bearing C.M.
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No.340-C of 1991.
Ram Dia
Versus
Ved Parkash and others
Appellant-defendant Ram Dia is in the Regular Second Appeal
against the judgment and decree dated 26.05.1999 passed by the Civil
Judge(Sr.Divn.), Panipat in civil suit No.1274 of 1994(instituted on
26.03.1992) filed by Ved Parkash(respondent-plaintiff){defendant No.3 in civil
suit No.438/1982 in RSA No.2227 of 1990} as well as the subsequent
dismissal of the civil appeal No.38 of 2001 by the court of Additional District
Judge, Panipat vide judgment and decree dated 28.02.2002.
Briefly summarized the facts of the above said civil suit No.1274
of 1994 are that Ved Parkash filed the suit for possession of land measuring 29
kanal 05 marla by way of specific performance of the agreement dated
12.07.1979 against Ram Dia and others on the allegations that Gorkha and
Munshi sons of Tokha were owners in possession of the land and that pursuant
to the death of Munshi, Gorkha son of Tokha inherited the share of Munshi
being the sole legal heir. Gorkha sold half share of the land as described in
paragraph No.1 of the plaint vide sale-deed dated 01.06.1981 registered on
02.06.1981 and the remaining half share was sold vide sale-deed dated
12.06.1981 and 07.06.1983. It was also averred that Gorkha had entered into
an agreement dated 12.07.1979 to execute a sale-deed with respect to the share
of Munshi, after sanction of mutation of the said estate in his favour, @
Rs.27,000/- per acre. It was alleged that the mutation of the estate of
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ownership was wrongly sanctioned in favour of Ram Dia (appellant-defendant
No.1) on the basis of Will dated 21.04.1976. It was claimed that Gorkha had
originally filed a suit for declaration to the effect that he is the only legal heir
of Munshi and that mutation No.1977 sanctioned in favour of Ram Dia was
null & void and not binding on him. Gorkha, however, died on 26.09.1983
whereupon one Triveni Jatti moved an application for being impleaded him as
a legal representative of Gorkha on the strength of the registered Will dated
01.04.1980. The said application was contested and was dismissed on
15.09.1987 after holding that the Will dated 01.04.1980 relied upon by Triveni
Jatti was doubtful. The suit was accordingly dismissed as abated. An appeal
was thereafter filed by Triveni Jatti against the said decision, however, Triveni
Jatti also died during pendency of the appeal without any heir and that the
estate stood escheated to the State of Haryana which was impleaded in the
case. The appeal was however dismissed by the Additional District Judge,
Karnal on 01.10.1990. Thus, the mutation of the property remained intact and
the declaration as sought by Gorkha could not be decreed.
It was also submitted that the Will dated 21.04.1976 executed by
Munshi in favour of Ram Dia was subject matter of consideration in civil suit
No.438 of 1982, titled as "Ram Dia Versus Har Narain and others" wherein
due execution of the registered Will could not be proved, hence, Gorkha would
be the lawful owner of the estate of Munshi as well, being the successor, by
inheritance. It was submitted that neither Ram Dia nor the State of Haryana
could be deemed to have stepped into the shoes of Gorkha and that Ram Dia
cannot be held to be holding the land as an heir of Gorkha and that of Munshi.
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He submits that Ram Dia executed a sale of land measuring 3 kanal 15 marlas
to one Arvind out of the land of Munshi and that the sale was pre-empted by
Prithi son of Ram Dia on the strength of the Will executed by
Munshi(deceased). It was claimed that transfer of land in favour of Prithi and
others was illegal, null & void as Ram Dia had no title. An application for
partition of the land was also moved by Ved Parkash. It was claimed that the
defendants were claiming title after stepping into the shoes of Gorkha who had
already executed an agreement for sale of the land with him. The defendants
Ram Dia and others were bound by the terms & conditions of the agreement
dated 12.07.1979 and were duty bound to execute the sale-deed in favour of
Ved Parkash who had been ready and willing to perform his part of the contract
and to pay the balance sale consideration as well.
The defendants filed different written statement(s). Ram Dia
raised preliminary objections about the maintainability of the suit and locus
standi of Ved Parkash. It was also claimed that the suit land was ancestral and
that the suit for specific performance is not maintainable. Execution of the
agreement to sell dated 12.07.1979 by Gorkha was denied but other cases
inter-se between the parties were acknowledged. The plea as regards Gorkha
having renounced the world and having become Sanyasi were raised again and
it was claimed that Gorkha could not inherit the estate of Munshi and hence, he
had no right to execute agreement qua the said property. On his renouncing the
world and adopting Sanyas, Gorkha lost all his rights over the property and it
devolved upon Munshi and thereafter upon Ram Dia on the basis of the Will
dated 21.04.1976 executed by Munshi. Various objections were also raised
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with respect to the legality and admissibility of the Will as well as, the
suspicious circumstances; the insufficiency of the sale consideration and also
with respect to the reality of the thumb impressions marked on the agreement
to sell.
Reliance was also placed on dismissal of the suit No.421 of 1981
titled as "Gorkha Versus Ram Dia and another"(Ext. D-1) by the Sub Judge Ist
Class, Karnal on 15.09.1987 and the subsequent dismissal of the application of
Triveni(Tirbani) Jatti and dismissal of the appeal as well as C.R. No.303 of
1988 filed by Triveni Jatti. The aspect of Gorkha having adopted Sanyas and
having renounced the world, remains undisputed. It was submitted that Ved
Parkash was a co-plaintiff in the said civil suit No.421 of 1981 and his right
was declined by the civil court since the cause of action w.r.t. Gorkha had
already abated. The Civil Appeal No.5/14 of 1990 filed by State of Haryana
against decree dated 15.09.1987 was also dismissed by the Additional District
Judge, Karnal (Ex.D4) vide judgment dated 26.02.1991. It was thus pleaded
that Gorkha had no right, title or interest at the time of execution of the sale-
deeds dated 01.06.1981 and 12.06.1981. Ram Dia reiterated and supported the
sanction of mutation in his favour on the basis of the Will and claimed that the
land was never escheated in favour of State of Haryana. He also defended his
claim that the findings recorded in civil suit No.438 of 1982 cannot be held to
be final since appeal against the same were pending. All other allegations were
also denied and prayer was made for dismissal of the suit.
A separate written statement was filed by the State of Haryana
claiming for dismissal of the suit but it never claimed that the property vested
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in the State by escheat.
Defendant Nos.2 and 3 however filed a joint written statement
admitting the claim of the plaintiff and made a statement on 22.01.1993 that
they had no objection to the suit of Ved Parkash being decreed.
Replication was filed and on completion of pleadings, the
following issues were framed:-
"1. Whether Gorkha had agreed to sell the suit land to the
plaintiff vide agreement to sell dated 12.7.1979, if so, to
what effect? OPP
2. Whether Gorkha had inherited the share of Munshi? OPP
3. Whether the plaintiff was ready and willing to perform his
part of the agreement? OPP
4. Whether actual physical possession of the suit land was
handed over to the plaintiff at the time of agreement in part
performance of the agreement; if so, to what effect? OPP
5. Whether Gorkha is civilly dead; if so, to what effect?
OPD.1.
6. Whether the suit is time barred? OPD.1.
7. Whether the suit land was ancestral? OPD.1.
8. Whether Ram Diya, defendant No.1 is the only legal heir of
Gorkha and Munshi? OPD.1.
9. Whether any valid Will was executed by Munshi in favour
of Ram Diya, deft. No.1? OPD.1.
10. If agreement to sell is proved, whether the same is binding
on the defendants? OPD.4.
11. Whether the suit property was vested in the State of
Haryana by way of escheat? OPD.4.
12. Relief."
The parties led their respective evidence. The plaintiff has
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examined PW1 Kul Bhushan, PW2 Maharaj Kishor, PW3 Narain Dass, PW4
Ashok Kumar, PW5 Satnam Dass and the documents i.e. agreement dated
12.7.1979 (Ex.P1), affidavit dated 12.7.1979 (Ex.P2), copy of power of
attorney dated 6.3.1981 (Ex.P3), copy of sale-deed dated 2.6.1981 (Ex.P4),
copy of sale-deed dated 9.7.1981 (Ex.P5), copy of legal notice (Ex.P7), copies
of postal receipts (Exs. P8 to P10), acknowledgement(Ex.P11), U.P.C. postal
receipts (Exs.P12 to P14), receipt dated 5.2.1981 of Rs.30,000/- (Ex.P15),
copy of judgment dated 28.4.1988 passed in civil suit titled Ram Dia Vs. Har
Narain and others (Ex.P16), copy of decree-sheet dated 28.4.1988 passed in
civil suit titled Ram Dia Vs. Har Narain and others (Ex.P17), copy of judgment
passed in civil appeal titled Ram Diya Vs. Ved Parkash, vide dated 11.11.1994
(Ex.P18), copy of decree in appeal dated 11.11.94 passed in civil appeal titled
Ram Diya Vs. Ved Parkash (Ex.P19), copy of judgment dated 5.1.1991 passed
in both consolidated civil suits titled Ram Dia Vs. Ved Parkash (Ex.P20), copy
of decree-sheet passed in above titled suit (Ex.P21), copy of order dated
23.2.1995 passed in appeal titled Ram Diya Vs. Ved Parkash filed before
Collector, Panipat (Ex.22), copy of order dt. 23.2.1995 passed in appeal titled
Ram Dia Vs. Ved Parkash etc. filed before Collector, Panipat (Ex.P23), copy of
order dt. 23.2.1995 passed in appeal titled Ram Dia Vs. Ved Parkash etc. filed
before Collector, Panipat (Ex.P24), copy of decree in appeal dt. 7.11.1990,
passed in civil appeal tilted Ram Dia Vs. Har Narain etc. (Ex.P25), copy of
judgment dt. 7.11.1990 passed in civil appeal titled Ram Dia Vs. Har Narain
etc. (Ex.P26), copy of order dt. 1.9.1980 passed in Regular Second Appeal
titled Smt. Shanti Devi Vs. Gurkha, by Hon'ble High Court (Ex.P27), copy of
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judgment dated 17.2.1972 passed in civil suit titled Smt. Shanti Devi Vs.
Gorkha (Ex.P28), copy of judgment dated 15.2.1980 passed in appeal titled
Shanti Devi Vs. Gorkha (Ex.P29), copy of decree-sheet in appeal dated
15.2.1980 passed in civil appeal titled Shanti Devi Vs. Gorkha (Ex.P30) and
copy of order dated 31.7.1968 passed by Collector, Panipat in application titled
Gorkha Vs. Smt. Shanti Devi (Ex.P31) were placed on the file. However,
inadvertently, no document could be exhibited as Ex.P6.
On the other hand, the defendant No.1-Ram Diya examined
himself as DW1, DW2 Amar Singh, DW3 Shiv Kumar, DW4 Raghbir Singh,
DW5 Gur Parsad Jindal and the documents i.e. copy of order dated 15.9.1987
passed in civil suit titled Gorkha etc. Vs. Ram Dia etc. (Ex.D1), copy of order
dated 28.3.1989 passed by Hon'ble High Court in C.R. Appeal titled Tirbani
Jatti Vs. Ram Dia etc. (Ex.D2), copy of order dated 4.2.1991 passed by
Hon'ble High Court in R.S.A. titled Ramdia Vs. Har Narain etc. (Ex.D3), copy
of judgment dated 26.2.1991 passed in civil appeal titled The State of Haryana
Vs. Ram Dia etc. (Ex.D4), copy of plaint of case titled Gorkha etc. Vs. Ram
Dia etc. (Ex.DW3/A) and copy of Will dated 19.4.1976 (Ex.DW5/A) were
produced on the file. The defendant No.4 has examined DW1 Dalel Singh
Tehsildar, Panipat and did not produce any document.
The findings with respect to the issues as regards readiness and
willingness of Ved Parkash to perform his obligation under the agreement are
not being gone into at this juncture as argument has been confined solely to the
finding recorded on the issue that has been argued by the counsel for the
parties during the hearing of regular second appeal i.e. with respect to the
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execution of Will in favour of Ram Dia by Munshi, i.e. issue No.9. The Civil
Judge (Sr. Divn.), Panipat relied on the judgment (Ex.P6) in civil suit No.438
of 1982 about the Will having not been proved and hence returned a finding
that Gorkha being the brother of deceased Munshi inherited the property of
Munshi on his demise, on the basis of succession, and that Gorkha had not
renounced the world. The suit of Ved Parkash was accordingly decreed
directing Ram Dia to specifically perform the agreement (Ex.P1) by way of
delivery of possession of the disputed land and for execution of the sale-deed
in compliance of the said agreement (Ex.P1) on receipt of the balance sale
consideration of Rs.98718.15 Ps.
Aggrieved of the said judgment and decree dated 26.05.1999
passed by the Civil Judge(Sr. Divn.), Panipat, appeal No.38 of 2001 was
preferred by Ram Dia before the District Judge, Panipat.
The said appeal was thereafter dismissed by the court of
Additional District Judge, Panipat vide judgment and decree dated 28.02.2002
and the findings recorded by the Civil Judge (Sr. Divn.), Panipat, were
affirmed. Hence, the Regular Second Appeal No.2314 of 2002 was filed by the
appellant-defendant Ram Dia.
Ram Dia and another
Versus
Ved Parkash
Appellant-plaintiff Ram Dia is in Regular Second Appeal against
the judgment and decree dated 17.02.1997 passed by the Civil Judge(Jr. Divn.),
Panipat in civil suit No.43/88 dated 11.01.1988 for declaration and the
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subsequent dismissal of civil appeal No.59 of 2000 by the Additional District
Judge, Panipat, vide judgment and decree dated 28.02.2002.
Ram Dia along with his son Prithi are the plaintiffs in the said
civil suit No.43/1988 seeking declaration to the effect that the agreement to sell
dated 12.07.1974; the General Power of Attorney dated 01.04.1980 and sale-
deed dated 09.06.1983 are null & void and the plaintiff be declared owner in
possession. A reference was made to the facts about the pedigree table, Gorkha
having renounced the worldly affairs by adopting Sanyas and the property
being liable to devolve upon Munshi as owner in actual physical possession of
the suit land and on the same going to appellant-plaintiff vide registered Will
dated 21.04.1976 his favour to claim title on the estate being the nearest heir.
It was claimed that Prithi son of Ram Dia(appellant No.2) acquired possession
over the suit land being a pre-emptor vide decree dated 16.12.1983 and that the
General Power of Attorney dated 01.04.1980 purportedly executed in favour of
Triveni Jatti and the registered sale-deed dated 09.06.1983 were null & void,
ineffective and not binding on the rights of Ram Dia appellant-plaintiff. It was
claimed that having renounced the world and after adopting Sanyas, Gorkha
lost all his proprietary rights on the suit property and that the General Power of
Attorney does not bear the thumb impression of Gorkha and that the
impressions, if any, are a result of fraud and misrepresentation and that Gorkha
had no subsisting interest in the estate and could not have alienated the same
any further. It was claimed that Ram Dia came to know about the sale-deed
and the General Power of Attorney on 23.10.1986 when the same was tendered
in evidence by Ved Parkash in the pre-emption suit titled as "Ram Dia Versus
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Ved Parkash. Hence, a declaration was sought that the agreement to sell dated
12.07.1974, the General Power of Attorney dated 01.04.1980 and the sale-deed
dated 09.06.1983 were null & void.
Ved Parkash filed his reply taking numerous objections with
respect to maintainability of the suit, the same being bad for non-joinder of
necessary parties including Har Narain(defendant No.1 in civil suit No.438 of
1982); the suit being barred under Order 9 Rule 9 and Order 2 Rule 2 CPC, the
plaintiff having no locus standi.
On merits, the plea about Gorkha having adopted Sanyas or being
civilly dead were denied and it was claimed that Gorkha was in actual physical
possession of the property and had not renounced the world. It was asserted
that the estate of Gorkha devolved upon Triveni Jatti under a valid Will
executed by Gorkha and that even Munshi's property was inherited by Gorkha.
It was claimed that Ram Dia himself admitted Gorkha as a co-owner when he
filed a suit for pre-emption in respect of sale made by Gorkha in favour of Ved
Parkash, hence, by his own act and conduct he is estopped from denying the
title of Gorkha as a co-owner. It was also submitted that the suit to be owner
of the entire property is on the basis of the Will, which has already been
dismissed, and Gorkha thus became to be owner of the entire suit land
including the share of Munshi, hence, the suit deserved dismissal.
On completion of pleadings, the following issues were framed:-
"1. Whether the general power of attorney dated 4.8.77
allegedly executed in favour of defendant No.2 is null and
void, invalid and not binding upon the plaintiff? OPP
2. Whether the sale-deed dated 7.6.83 is null and void and
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invalid? OPP
3. Whether the suit is bad for non-joinder of parties? OPD
4. Whether the suit is time barred? OPD
5. Whether the plaint has not been properly valued and
should be rejected? OPD
6. Whether the suit has not been properly valued for the
purposes of court fee and jurisdiction? OPD
7. Whether the trial of the suit is barred under order 9 rule 9
and order 2 rule 2 and section 11 of CPC? OPD
8. Whether the suit is liable to be stayed under section 10 of
CPC ? OPD
9. Whether the plaintiffs have no locus-standi to maintain
and file the present suit? OPD
10. Whether the present suit is not maintainable? OPD
11. Whether the suit is barred under section 9 rule 8 CPC?
OPD
12. Relief."
On consideration of the allegations led by the parties, the suit filed
by Ram Dia was dismissed and it was held that Gorkha never renounced the
world by entering into any religious order and was taking care of the property
himself and that Ram Dia failed to establish about Gorkha having adopted
Sanyas. The power of attorney executed by Gorkha in favour of Triveni Jatti,
chela of Shri Govind Jatti Maharaj was accepted. Findings on other issues
were also returned against Ram Dia.
Aggrieved of the same, civil appeal No.59 of 2000 was preferred
which was also dismissed by the Additional District Judge, Panipat.
Still aggrieved, RSA No.2873 of 2003 has been preferred by the
appellant-Ram Dia.
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Ram Dia(died) through his LRs
Versus
Ved Parkash
Both these Regular Second Appeals arise out of a common
judgment and decree dated 05.01.1991 passed by the court of Additional
Senior Sub Judge, Panipat in civil suit No.567 of 1981 ("titled as Ram Dia
Versus Ved Parkash") and civil suit No.701 of 1981 titled as "Ram Dia Versus
Ved Parkash" and the subsequent dismissal of civil appeal No.19 of 1991 titled
as "Ram Dia Versus Ved Parkash" as well as civil appeal No.20 of 1991 titled
as "Ram Dia Versus Ved Parkash" by the Additional District Judge, Panipat
vide judgment and decree dated 11.11.1994.
Both the civil suits for pre-emption preferred by Ram Dia were
clubbed and consolidated by the Sub Judge, Panipat vide order dated
02.12.1983. It was averred that Tokha, predecessor of Gorkha and Munshi,
was owner of the land measuring 66 kanals 5 marlas. He died intestate leaving
behind his sons Gorkha and Munshi, who inherited the estate in equal shares.
Gorkha sold his share measuring 23 kanals 10-1/2 marlas of land to Ved
Parkash vide two different sale-deed dated 09.07.1981 amended on 12.10.1981
and sale-deed dated 01.06.1981 registered on 02.06.1981. Munshi had
however executed a registered Will dated 21.04.1976 in favour of the plaintiff-
Ram Dia. The plaintiff thus sought pre-emption of the sale along with all
appurtenant rights thereto claiming himself to be the co-sharer, having
succeeded to the rights of Munshi. The suit for possession by way of pre-
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emption was accordingly filed further averring that the sale took place for an
ostensible consideration of Rs.29790/- and Rs.49615/-, which is without notice
to him as Gorkha had renounced the world.
Ved Parkash contested the suit and raised various preliminary
objections including that the suit was bad for non-joinder of necessary parties
and that only a partial pre-emption had been claimed. The plea as noticed in
civil suit No.438 of 1982 about the land having been leased to Har Narain and
also about maintainability of the suit under order 9 rule 9 and order 2 rule 2
CPC was also raised. It was also claimed that the Will in favour of Ram Dia
was never proved and that the property being ancestral could not have been
transferred by way of Will and that Gorkha became the sole and exclusive
owner of the land by way of sub version. Further, it was claimed that the land
was situated within the municipal limits and hence was not pre-emptive. It was
also contended that the land had been sold for a sale consideration of
Rs.29790/- and Rs.49615/- respectively and further expenses to the tune of
Rs.4300/- were incurred and if the suit is decreed, the defendant be entitled to
refund of the above amount along with the expenses for the same.
Replication was filed. On completion of pleadings, the following
issues were framed:-
"1. Whether the plaintiff has superior right of pre-emption?
OPP
2. Whether sale price was fixed in good faith or the same
was actually paid? OPP
3. If issue No.2 is not proved, what was the market value
of land and in suit at the time of sale? OPP
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4. Whether the suit is bad for non-joinder of necessary
parties? OPP
5. Whether the suit is not within time? OPD
6. Whether the suit has not been properly valued for
purpose of court fee and jurisdiction? OPD
7. Whether the suit is barred under order 9 rule 9 CPC?
OPD
8. Whether the plaintiff is estopped from filing this suit by
his acts and conduct? OPD
9. Whether the suit is liable to be stayed u/s 10 of Code of
Civil Procedure? OPD
10. Whether the suit land is situated within the limits of
municipal committee, Panipat; if so, to what effect?
OPD
11. Whether the plaint has not been properly verified, if so,
to what effect? OPD
12. Whether the defdts have purchased the suit land for
setting up an industry with the permission of Director of
Industries; if so, to what effect? OPD
13. Relief."
Following additional issues were also framed by the then Sub
Judge IInd Class, Panipat vide his order dated 19.07.1986:-
"1(a) Whether the suit is bad for partial pre-emption? OPD
1(b) Whether the plaintiff has claimed certain excessive
rights which have not been sold; if so, to what effect?
OPD
1(c) Whether the plaintiff has not deposited the 1/5th pre-
emption money in time? OPD
1(d) Whether the Patta in favour of Har Narain is bogus as
alleged in replication to P.O. para 4 of the W/S? OPD
1(e) Whether the plaintiff cannot challenge the title of the
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vendor in a pre-emption suit? OPD
1(f) Whether Gorkha vendor is a necessary party to the
suit? OPD
1(i) Whether the plaintiff is estopped from denying the
ancestral nature of the land left by Munshi? OPD
1(j) Whether Gorkha succeeded Munshi as stated in P.O.
para nos.13, 14 of the W.S.? OPD
1(k) Whether Gorkha and Munshi were owners in
possession of separate pieces of land on account of
family settlement as stated in P.P. of the W.S.? OPD
1(l) Whether the defendant is entitled to the stamp and
registration expenses of sale-deed and Tatima sale-deed;
if so, how much? OPD
1(m) Whether the defendant is entitled to Rs.2000/- spend on
litigation with plaintiff for securing the sale-deed in
suit? OPD."
The parties led their respective evidence. Ram Dia himself
appeared as PW1 and examined Gur Parsad Jindal, the then Tehsildar-cum-Sub
Registrar as PW3 to prove the attestation and execution of the Will dated
21.04.1976. The attesting witness Amar Singh appeared as PW4. Copy of the
mutation sanctioned on the basis of the Will was proved as Ex.P1. The appeal
filed by Gorkha against the order sanctioning mutation in favour of Ram Dia,
passed by the Assistant Collector IInd Grade, was dismissed and the order of
dismissal was relied upon as Ex.P2. The revision petition was also dismissed
by the Commissioner, Ambala Division vide order Ex.P3. Hence, the mutation
attained finality and the subsequent revenue record reflected ownership of Ram
Dia as a co-owner. It was also noticed that apart from suits in question, there
had been three other different rounds of litigation between the parties. Gorkha
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had entered into an agreement to sell the suit land with Ved Parkash against
which civil suit No.243/79 was instituted on 06.06.1979 whereby Ram Dia
challenged rights of Gorkha to sell the suit land in favour of Ved Parkash on
the ground of his having become Sanyasi and having no wife and children and
that the property would hence have devolved upon Munshi to become
exclusive owner of the suit land and claiming that Ram Dia succeeded to the
suit land on the strength of Will dated 21.04.1976 executed by Munshi.
A stay was initially granted in his favour and Gorkha was
restrained from alienating the suit land. The said civil suit No.243/79 was
however later dismissed under order 9 rule 8 CPC. It was also noticed that
Gorkha had entered into an agreement for land measuring 66 kanals 5 marla to
give on lease for a period of 70 years from kharif 1980 to rabi 2050 @
Rs.2000/- per annum claiming himself sole owner of the entire property after
the death of Munshi. The suit No.296 of 1980 was thereafter instituted by Har
Narain claiming specific performance of the agreement where a compromise
was arrived at between the parties and the suit was decreed. The said judgment
and decree in civil suit No.296 of 1980 was subject matter of challenge in civil
suit No.438 of 1982 taking pleas similar to those raised in civil suit No.243 of
1979. It was also noticed that in the said civil suit No.438 of 1982, the
registered Will dated 21.04.1976 was not proved. It was also noticed that the
regular second appeals against the said judgment and decree were already
pending and the matter had not attained finality by placing reliance on the
judgment in the matter Om Parkash and others Versus The Joint Director of
Rural Development and Panchayats Punjab and another, reported as 1987
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P.L.J. 273. The prime claim was thus that if the Will dated 21.04.1976 is
ignored, plaintiff Ram Dia ceases to be a co-sharer and would consequently
lose his right to pre-empt the sale.
An application was however filed by Ved Parkash for placing on
record the order dated 14.11.1990 passed by the Assistant Collector 2 nd Grade,
Samalkha and alleging that in a suit for pre-emption, a plaintiff is required to
prove his status as on the date of sale, on the date of filing of the suit as also on
the date of passing of the decree. It was brought on file that in the partition
proceedings, the share of defendant-Ved Parkash had been separated and a
final order of partition had been passed on 14.11.1990, hence Ved Parkash
ceased to be a co-sharer. Ram Dia however denied the partition document and
claimed that the suit land had not been partitioned on 14.11.1990 and that the
order had not attained finality and that he would file civil appeal against the
said order.
The court examined the rival contentions raised by the parties and
came to a conclusion that the order of partition(Ex.D13) deserved to be taken
into consideration as well as the argument that the appeal had already been
filed before the Collector against the order of partition was devoid of any merit
by placing reliance on the judgment in the matter of Ramjas and others Versus
Shrimati Hardevi and another, reported as 1973 PLJ 281. It was held that
Ram Dia ceased to be a co-sharer and hence was not entitled to pre-empt the
sale. The Sub Judge also placed reliance on the judgment of the Additional
District Judge in the appeal arising out of civil suit No.438 of 1982 to the
extent of suspicious circumstance noticed to be surrounding the Will such as
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that there was no description about Gorkha in the said Will and as to why he
was excluded from inheritance, hence, the Will was disbelieved. The
additional issues were not pressed by Ved Parkash at the time of arguments and
were hence decided in favour of Ram Dia. As a sequel, the suit of Ram Dia for
seeking pre-emption was dismissed.
Aggrieved thereof, civil appeal Nos.19 and 20 of 1991 were filed.
Upon consideration, the partition proceedings were accepted by
the Additional District Judge to have become final and Ram Dia could no more
claim himself to be a co-sharer in the land to claim pre-emption. The Will
dated 21.04.1976 was not accepted in view of the judgment passed by the
Additional Sessions Judge, Karnal despite noticing that the said judgment does
not operate as res judicata and has not attained finality on account of the
pendency of the regular second appeal as the status in land was no more joint
before passing of the decree, the appeal was also dismissed.
Aggrieved of the dismissal of both the civil appeals, RSA Nos.391
and 392 of 1995 have been filed.
ARGUMENTS ON BEHALF OF APPELLANT-PLAINTIFF-RAM DIA
Learned counsel appearing on behalf of the appellant-Ram Dia in
these appeals has argued that Ram Dia became owner in possession of the land
measuring 65 kanals 5 marla situated in village Nangal Kheri, District Panipat,
which was initially jointly owned by Munshi and Gorkha sons of Tokha. Since
Gorkha renounced worldly affairs and became Sanyasi by adopting a religious
order 50 years prior to the institution of the civil suit, the property devolved
upon Munshi who executed a registered Will in favour of Ram Dia on
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21.04.1976. It is submitted that on the demise of Munshi on 04.06.1978, the
property was mutated in favour of Ram Dia vide mutation No.1977 dated
08.04.1980. He submits that on renunciation of the worldly affairs and joining
of the religious order, Gorkha had to be deemed to be civilly dead and that his
property would devolve upon Munshi being the sole survivor as Gorkha had no
other heir. He never visited the village, took care of land or was ever in
possession or cultivation thereof. Thus, the entire land measuring 65 kanals 5
marla would devolve upon Ram Dia on the strength of Will dated 21.04.1976.
He claimed that the judgment and decree passed in civil suit No.296 dated
15.05.1980 filed by Har Narain for specific performance of the agreement
dated 09.12.1978 to execute lease deed for 70 years against Gorkha was
without proper service and by preponing the date. The said suit No.296/80 was
allegedly compromised by Gorkha on 02.06.1981 which was actually under a
conspiracy hatched by Ved Parkash along with Har Narain to purchase the said
land and to avoid pre-emption of sale. The collusive decree dated 02.06.1981
was thus said to be not binding and accordingly liable to be set aside along
with the two sale-deeds registered on 02.06.1981 and 09.07.1981 executed in
favour of Ved Parkash by Gorkha, in view of the statutory right of pre-emption.
It is also argued by him that the findings as regards the Will dated 21.04.1976
having not been proved are incorrect and are liable to be set aside since the
courts failed to take into consideration the evidence of the attesting witness
Amar Singh, who had stepped into witness box in the proceedings in relation
to civil suit No.1274 dated 26.03.1992, however, even though the courts held
that the finding returned in civil suit No.438 of 1982 had not become final and
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would not operate as res judicata, yet, they did not take into consideration the
testimony of the attesting witness Amar Singh and disbelieved the Will solely
on the basis of the earlier judgment. It is submitted that Ram Dia had moved
an application for adducing additional evidence of Amar Singh in appeal
No.29/1988 arising out of Civil Suit No.438/1982, however, the said
application was dismissed by the Additional District Judge by observing that
the evidence is not necessary for ascertaining the Will but in the latter part of
the judgment, he discarded the Will for want of evidence of the attesting
witness. He submits that the approach of the court was thus inherently
contradictory. Similar application was also filed alongwith RSA No.2227 of
1990. It is further contended that notwithstanding that the application under
Order 41 Rule 27 CPC was not allowed by the Additional District Judge,
Karnal in appeal arising out of civil suit No.438 of 1982, yet, considering the
principle that all the proceedings have now been clubbed together and are
being heard together, the testimony of the attesting witness Amar Singh can be
taken into consideration since it is a part of the record along with testimony of
the attesting Sub-Registrar. It is submitted that the second attesting witness
had already passed away and thus could not be brought in evidence.
It is vehemently argued by him that the earlier proceedings in civil
suit No.243 of 1979 would not operate as a bar against Ram Dia under Order 9
Rule 9 or under Order 2 Rule 2 CPC and the subsequent suits were
maintainable on account of the subsequent events and developments that have
been pointed out. The above Civil Suit No.243 of 1979 was filed for seeking
an injunction against Gorkha and others from interfering in possession and that
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the question of title was not necessary for the final relief as the question
necessary for determination in a suit for injunction is "possession". The
subsequent suit No.438 of 1982 was a declaratory suit against the consent
decree for title and was hence a distinct cause of action. The failure to pursue
the injunction suit could not be read as giving rise to a prohibition against
maintainability of the declaratory suit, filed on a legal advice. It was also
vehemently argued that the property of Gorkha would have devolved upon
Munshi and if the registered Will dated 21.04.1976 is accepted to have been
proved, on the basis of evidence already on record, Ram Dia becomes a co-
sharer in the property and would thus be entitled to seek pre-emption of the
sale-deed registered in favour of Ved Parkash son of Har Narain. He contends
that the Will was wrongly discarded by indicating a suspicious circumstance
and merely for non-mentioning/leaving out of Gorkha, without considering
that he had already renounced the worldly affairs. Hence, a mere non-
mentioning about Gorkha in the Will was not sufficient to discard the Will,
which was otherwise well proved by examining the Sub-Registrar as well as
the attesting witness to the Will. It is contended that the Will having been duly
proved as per the mandate of the Indian Evidence Act, 1872 ought to have
been accepted. It is thus prayed that the suit for declaration viz 438/1982 be
decreed and the consent decree dated 02.06.1980 passed in Civil Suit
No.296/1980 be set aside as not being binding on the rights of the appellant.
Additionally, the sale-deeds executed by Gorkha in favour of Ved Parkash-
himself or through the General Power of Attorney be also set aside as Gorkha
had no right over the property on entering the religious order and that Munshi
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be declared as successor to the estate of Gorkha w.e.f. his renouncing the
worldly affairs. In the alternative, the appellant becomes co-sharer with
Gorkha w.e.f. sanction of mutation in his favour and was thus lawfully entitled
to seek pre-emption of the sale in his favour. Hence, the judgments and the
decree passed in subsequent suits be suitably modified/reversed. No other
argument has been raised.
ARGUMENTS BY RESPONDENT-VED PARKASH
Responding to the above, counsel for Ved Parkash-respondent has
contended that the claim of Ram Dia is based on a premise that Gorkha had
renounced the worldly affairs and that he had entered a religious order. It is
submitted that in all these five different civil suits that had been instituted,
Ram Dia failed to establish the above crucial aspect. In the absence of leading
any cogent and convincing evidence to establish the said claim, the plea of
Ram Dia was repeatedly and rightly not accepted by the courts. It was
specifically noticed by the courts that name of Gorkha continued to reflect in
the jamabandies as well as khasra girdawaries even till 1990's and that he had
also received compensation against the land acquired and had also initiated
proceedings under Sections 107/151 Cr.P.C. against Ram Dia as well as his son
Pirthi. Gorkha also contested the sanction of mutation with respect to the share
of Munshi in favour of Ram Dia on the strength of the registered Will and that
he had also instituted civil suit against Ram Dia which however, was dismissed
after his death. All these events clearly show that Gorkha had neither
renounced the worldly affairs nor had he entered into any religious order. He
was actively involved in the worldly affairs and asserted his right over the
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property inherited amongst the brothers from Tokha. He further submits that
Ram Dia having instituted the suit for pre-emption against Gorkha is a
testament unto itself to his acknowledgement of Gorkha as a co-owner in
possession of the suit land. Hence, Ram Dia miserably failed to establish the
devolution of the estate of Gorkha in favour of Munshi, on his renouncing the
worldly affairs and joining of religious order, prior to the death of Munshi on
04.06.1978. Since the claim to the estate of Gorkha is based solely on
devolution of the said property upon Munshi and the said plea having not been
established, Ram Dia has no subsisting right to claim any title over the
property that fell in the share of Gorkha. He was thus competent to deal with
the estate in any manner he deemed fit and appropriate. Being the absolute
owner in possession of the property, the same could be alienated/transferred by
him.
He has further placed reliance on the judgment of the Hon'ble
Supreme Court in the matter of Krishna Singh Versus Mathura Ahir and
others, 1980 AIR (Supreme Court) 707 laying law with respect to proving
renunciation of the worldly affairs, wherein it has held as under:-
"62. There is also a sub-division of the Puri division of the
Dasnami sect. They have tenets much in common, based on the
central idea that the Supreme Deity is incomprehensible or, as
they say, unseeable. They denounce idolatry. This more or less
conforms to the tenets of the Sant Mat sect. It is proved by the
evidence on record that followers of this sect treat the Guru as
the incarnation of God. They have no faith in inanimate idols
installed in temples nor do they worship them in their cult.
There are no caste restrictions and anyone can be admitted into
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the Sant Mat fraternity.
64. In order to prove that a person has adopted the life of a
sanyasi, it must be shown that he has actually relinquished and
abandoned all wordly possessions and relinquished all desire
for them or that such ceremonies are performed which indicate
the severance of his natural family and his secular life. It must
also be proved, in case of orthodox sanyasis, that necessary
ceremonies have been performed, such as Pindadana or Biraja
Homa or Prajapathiyesthi without which the renunciation will
not be complete."
Similarly, the Delhi High Court in the matter of Teesta Chattoraj
Versus Union of India, 2012(21) R.C.R. (Civil) 784 has observed as under:-
"30. The petitioner has placed reliance on the meaning of the
expression "renounce" and "renounce the world" contained in
the Advanced Law Lexicon by P. Ramanatha Aiyer 3rd Edition
2007 Reprint. "Renounce" is said to mean "to give up a right;
surrender; abandon, refuse to recognise any longer (as) to
renounce treaty principles, authority, heirship, etc. "Renounce
the world" would mean "to withdraw from worldly interests in
order to lead a spiritual life." Reference is made to Section
13(1)(vi) of the Hindu Marriage Act. The expression
"renouncing" means "making formal resignation of some right
or trust especially of one's position as heir or executor". The
Black's Law Dictionary Eighth Edition explains the expression
"renounce" to mean "to give up or abandon formally (a right or
interest); to disclaim (renounce an inheritance), to refuse to
follow or obey; to decline to recognise or observe (renounce
one's allegiance)". The Concise Oxford Dictionary of Current
English defines the expression "renounce" as "consent formally
to abandon; surrender; give up ( a claim, right, possession,
etc); repudiate; refuse to recognise any longer (renouncing
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their father's authority); a decline further association or
disclaim relationship with (renounced my former friends);
withdraw from; discontinue; forsake; refuse or resign a right or
position esp., as an heir or trustee". "Renounce the world"
means "abandon society or material affairs."
32. In my view, on a plain grammatical and literal
interpretation of the said words, it cannot be said that the
petitioner's natural father Shri Abhijit Ghosh has renounced the
world, as the renunciation of the world by a person would
involve and entail his severing his relationships with all other
human beings and would also entail the giving up of all
material wealth and pleasures.
33. In Madhusudhan Mohapatra v. Gobind Sabat and Another,
AIR 1965 Orrisa 54, the High Court takes note of an earlier
decision reported as Baldeo Prasad v. Arya Pritinidhi Sabha,
AIR 1930 Allahabad 643, where the Court took the view that
the mere fact that a person declares that he has become a
sanyasi or that he has described himself as such, or wears
clothes ordinarily worn by the sanyasis would not make him a
perfect sanyasi. He must not only retire from the worldly
interests and become dead to the world, but to attain this, he
must perform the necessary ceremonies without which the
renunciation will not be complete."
He also submits that even though the plea of the property being
ancestral had not been pleaded or established and the claim was being made by
Ram Dia solely on the strength of the registered Will executed in his favour by
Munshi on 21.04.1976, yet, it is not disputed that neither Gorkha nor Munshi
had any other heir or successor. Hence, the property became sole and
exclusive property in their respective hands and they were entitled to deal with
the said property in any manner as they would like. It has also been argued
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that any act done by Gorkha with respect to his property, which became his
sole and exclusive property, thus cannot be challenged by Ram Dia more so
when Gorkha himself defended the interests of Ved Parkash during his
lifetime.
He has further argued that the Will dated 21.04.1976 had not been
proved by Ram Dia by leading evidence which was to his knowledge, hence,
the estate of Munshi, who predeceased Gorkha, devolved on Gorkha by
survivorship and that Gorkha had every right to alienate/transfer or create any
lien or charge on the said estate and Ram Dia was bound to abide by the same.
It has been further argued that Ram Dia had earlier filed a civil
suit for injunction against Gorkha bearing civil suit No.243 of 1979 in which
he propounded the Will dated 21.04.1976 executed by Munshi in his favour
and also raised the plea of Gorkha having renounced the worldly affairs and
adopting a religious order. The sale-deeds and other documents which are
subject matter of challenge in subsequent civil suits were in existence as on the
said date and was to the knowledge of Ram Dia. An issue with respect to the
validity of the registered Will and other issues was also framed. The said civil
suit was however dismissed under Order 9 Rule 8 CPC. The said civil suit was
never revived. Thus, the subsequent suits at the behest of Ram Dia re-agitating
the said issues raised in civil suit No.243 of 1979 would not be maintainable.
Besides, the grievances that were available with Ram Dia but not impugned or
were not challenged in civil suit No.243 of 1979 dismissed for non-prosecution
on 06.06.1979 would be hit by provision of Order 2 Rule 2 CPC as well. The
subsequent civil suits were hence barred and not maintainable.
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He has further argued that so far as the plea of pre-emption is
concerned, the said plea has rightly been declined by the court after noticing
the status of the partition proceedings and on noticing that the plaintiff failed to
continue as a co-sharer in the suit property till passing of a decree since
"Naksha Jeem" had already been prepared and the partition proceedings had
been finalized before adjudication of the suit filed by Ram Dia seeking pre-
emption. Hence, he was no more a co-sharer in the property and the suit for
pre-emption was rightly dismissed. It is submitted that even though the
doctrine of res judicata as envisaged under Section 11 CPC would not be
applicable, however, the principle of issue estoppel would get attracted in the
present circumstances. In furtherance to the said argument, it is submitted that
the evidence of Amar Singh cannot now be read into the suit since all these
five suits were tried separately in point of time and evidence was recorded
separately, hence, evidence of one suit cannot be read into another and the
statement recorded in one suit could at best be used for confronting a witness
in the other suit. All the suits have to be decided independently of each other.
It is also submitted by him that even if contention of Ram Dia that
the said evidence of Amar Singh ought to be read into evidence or he may be
permitted to lead additional evidence is considered, there are numerous
suspicious circumstances which would render the Will liable to be discarded.
The suspicious circumstances relied upon and as noticed by the court are
reiterated as under:-
a) Despite Munshi having a living brother Gorkha, the Will did not make
any mention of Gorkha and did not give any reason for exclusion of Gorkha
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from inheritance of the property.
b) Ram Dia was neither a class-I nor class-II heir and was only amongst
agnates and that vesting of the property in an agnate during the lifetime of a
living brother is a suspicious circumstance.
c) Ram Dia is stated to have deposed that Munshi was residing separately
from him, hence, there was no reason or occasion for the property being given
to Ram Dia out of love and affection as Ram Dia was not taking care of
Munshi.
d) Amar Singh-witness also admitted in his cross-examination that Munshi
was bed-ridden before his last days as per the testimony recorded in the civil
suits leading to RSA Nos.391 and 392 of 1995 and hence, Munshi cannot be
said to be in a fit and disposing state of mind.
v) There has been a material improvement in the testimony of Amar Singh
while appearing as DW2 in civil suits giving rise to RSA No.2314 of 2002 vis-
a-vis his testimony recorded as PW2, hence, for the said reasons, the testimony
of Amar Singh is unworthy of being given any credit.
No other argument has been raised nor any other judgment cited
to prove the case.
CONSIDERATION
I have heard learned counsel appearing on behalf of the respective
parties and have gone through the documents available on record.
Two issues gain significance for determining the controversy(ies)
in hand. The first issue pertains to the applicability of issue estoppel and the
extent to which provisions of Order 9 Rule 9 and Order 2 Rule 2 CPC would
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be attracted and the second issue pertains to validity of the registered Will
dated 21.04.1976 executed by Munshi in favour of Ram Dia along with
question as to whether the testimony of attesting witness could be read in
evidence once all these appeals have been clubbed together and in light of the
fact that an application under Order 41 Rule 27 CPC had also been filed with
the appeal. The other issues involved in the case are dependent on the findings
returned on the said issues above.
In order to appreciate as to whether prohibition of Order 9 Rule 9
and Order 2 Rule 2 CPC would be applicable or not, the contentions revolve
around civil suit No.243 of 1979 instituted by Ram Dia against Gorkha and
Ved Parkash. The said civil suit was initially instituted on 06.06.1979 and was
later amended on 11.03.1981. In the said civil suit for permanent injunction,
some of the pleadings made by Ram Dia are as under:-
"2. That the defendant renounced the world about 45 years
ago and became a Sanyasi and left the village in saffron rope.
He had no wife or children. Later on he became Mahant of
Dera Dasnam near Birla Mandir Kurukshetra as Baba
Sindyagir. He had been adopted as Chela of the previous
Mahant of the Dera and succeeded to his Guru after his death.
3. That the defendant had abandoned his half suit land in
favour of his brother Munshi who became owner of the entire
land described above. However the revenue entries wrongly
continued in favour of the defendant also showing him as co-
owner along with Shri Munshi. As Shri Munshi continued in
possession peacefully as owner and to the exclusion of the
defendant who knew of this fact, Shri Munshi acquired full and
exclusive title with respect to the suit land by way of adverse
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possession also.
4. That plaintiff is the nearest colateral of Shri Munshi son
of Tokha and served him in his life time, Shri Munshi executed
a will regarding his entire property including the suit land on
21/04/1976. The will was got registered on 21/04/1976. A
copy of the registered will is being filed herewith. Shri Munshi
has since died and the plaintiff has succeeded to the suit land in
terms of the will of the deceased. The deft. has nothing to do
with the suit land nor is he in possession of any portion of it.
xx xx xx xx
6. That the defendant as described above, want to dispose
off the suit land without loss of time and if he succeeds in doing
that, the plaintiff would suffer irreparable loss of time and
would dragged into multifarious litigation. There is no other
efficacious remedy available to the plaintiff except the present
suit.
6(a) That defendant No.2 alleges to have entered into an
agreement with deft. No.1 in order to purchase some portion of
the suit land. He has been impleaded as a deft. in compliance
with the order of the court. There is no valid agreement and if
there is any and it is illegal and does not bind the plaintiff and
is in contravention of the stay order of the Court. At any rate,
the plaintiff continues to be in possession of the entire land as
full owner. Apprehension of interference with the title and
possession of the plaintiff regarding the suit land continues."
Pursuant to the filing of the written statement(s) by the parties, the
following issues were framed on 13.03.1980:-
"1. Whether the plaintiff has become owner of the suit property
by way of adverse possession? If so, to what effect? OPP
2. Whether 'Will' executed by Munshi in favour of the plaintiff
is a valid one? If so, its effect? OPP
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3. Whether the suit property is ancestral qua the parties? If so,
its effect? OPP
4. Whether the parties are governed by custom? If so, what
that custom is and its effect? OPP
5. Whether the suit has not been properly valued for purposes
of court-fee and jurisdiction? OPD
6. Whether the suit of the plaintiff is not maintainable as being
pre-mature? OPD
7. Whether the plaintiff has got no cause of action against the
answering defendant? OPD
8. Whether the defendant is entitled to special costs under
section 35A of Civil Procedure Code? OPD
9. Relief."
The plaint dated 05.06.1979 was thereafter amended on
11.03.1981 to which written statement was also filed. Issues were framed yet
again on 17.09.1981 and the same are extracted as under:-
"1. Whether plaintiff is the owner in possession of the land
in dispute? OPP
2. Whether Gorkha defendant had renounced the world 45
years back? If so, to what effect? OPP
3. Whether Gorkha defendant has abandoned his share in
the suit land in favour of his brother Munshi? If so, when
and to what effect? OPP
4. Whether Munshi deceased executed a valid will in favour
of the plaintiff. If so, to what effect? OPP
5. Whether the land in dispute was ancestral qua the
plaintiff? If so, to what effect? OPP
6. Whether the plaintiff is estopped from denying the title of
defendant No.1 Gorkha? OPD
7. Whether the plaintiff has no locus standi to file the
present suit? OPD
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8. Whether the suit has been properly valued for the
purpose of court fee and jurisdiction? OPP
9. Whether the suit is speculative? OPD
10. Whether the plaint does not disclose any cause of
action? OPD
11. Whether the suit is pre-mature? OPD
12. Relief."
The following was the relief prayed for in the said civil suit:-
".......that a decree for permanent injunction restraining the
defendant from alienating the suit land or transferring it by
way of sale, mortgage, exchange, gift, lease or any other
manner and further restraining him from interfering with the
possession of the plaintiff.....".
It is evident from a perusal of the abovesaid that the issue as
regards plaintiff Ram Dia being owner in possession of the land in dispute;
Gorkha having renounced the world 45 years ago as in 1979 and the property
falling to the share of Munshi along with validity of the registered Will dated
21.04.1976 in favour of Ram Dia were framed. The said suit was dismissed in
default under Order 9 Rule 8 CPC passed by the Sub Judge Ist Class, Panipat
on 26.11.1981.
In order to appreciate the applicability of the provisions of Order
9 Rule 9 and Order 2 Rule 2 CPC, it is necessary to refer to the said
provisions:-
"Order 2
(1) Suit to include the whole claim.--(1) Every suit shall
include the whole of the claim which the plaintiff is entitled to
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make in respect of the cause of action; but a plaintiff may
relinquish any portion of his claim in order to bring the suit
within the jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff omits
to sue in respect of, or intentionally relinquishes, any portion of
his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person
entitled to more than one relief in respect of the same cause of
action may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for all such reliefs, he
shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and
a collateral security for its performance and successive claims
arising under the same obligation shall be deemed respectively
to constitute but one cause of action.
Xx xx xx xx
Order 9 Rule 8 -Procedure where defendant only appears.--
Where the defendant appears and the plaintiff does not appear
when the suit is called on for hearing, the Court shall make an
order that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where
part only of the claim has been admitted, shall dismiss the suit
so far as it relates to the remainder.
Order 9 Rule 9 -Decree against plaintiff by default bars fresh
suit.--(1) Where a suit is wholly or partly dismissed under Rule
8, the plaintiff shall be precluded from bringing a fresh suit in
respect of the same cause of action. But he may apply for an
order to set the dismissal aside, and if he satisfies the Court
that there was sufficient cause for his non-appearance when the
suit was called on for hearing, the Court shall make an order
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setting aside the dismissal upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
(2) No order shall be made under this rule unless notice of
the application has been served on the opposite party."
A perusal of the said provisions shows that Order 2 Rule 2 CPC
mandates that a suit should include the whole of the claim which a plaintiff is
entitled to make in respect of a "cause of action" but a plaintiff may relinquish
any portion of his claim to bring the suit within jurisdiction of the particular
court. Where a plaintiff omits to sue in respect of a plaint or intentionally
relinquishes any portion of his claim, he is prohibited thereafter to sue in
respect of the portion so omitted or relinquished except where such omission is
in relation to a claim for which leave of the court has already been sought.
Where "the cause of action" in a subsequent suit is different or where the relief
asked for in the subsequent suit is not which could have been asked for in the
earlier suit, such subsequent suit would not be barred. The above issue is
based on the maxim "nemo debet bis vexari pro una et eadem causa" i.e. that
no person should be vexed twice for the same cause.
Order 2 Rule 2 CPC hence does not envisage that when a
transaction gives rise to separate and distinct causes of action, the plaintiff
must combine all the causes of action in one suit and rather requires that where
there is a "cause of action", the plaintiff cannot split 'the cause of action' into
parts and claim reliefs in parts by means of several suits. A plaintiff may not
be under an obligation to put forward every claim in one action that he may
have against the defendant since 'the cause of action' in such cases may be
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different but he must include the whole claim based on one particular 'cause of
action'. The bar of filing subsequent suits for the same cause of action is
applicable both during pendency of the first suit and also where the first suit is
disposed of, as per the law laid down by the Hon'ble Supreme Court in the
matter of M/s Virgo Industries(Engg.) Private Limited Versus M/s
Venturetech Solutions Private Limited, reported as 2013(1) SCC 625.
Similarly, Order 9 Rule 8 CPC empowers the court to proceed
further where the plaintiff does not appear when the suit is called for hearing
and entitles the court to dismiss the suit in part or as a whole. Order 9 Rule 9
CPC prescribes that where a suit is wholly or partly dismissed under Rule 8,
the plaintiff is precluded from bringing a fresh suit in respect of the "same
cause of action" but he may apply for setting the dismissal aside on giving a
satisfactory cause. The said test is to be applied "where the 'causes of action'
in the two suits is substantially identical. The term 'cause of action' is thus to
be construed with reference to the substance than to the form of action.
The matter as regards interpretation of Order 9 Rule 9 CPC came
up for consideration before the Hon'ble Supreme Court in the case of Mayandi
Versus Pandarachamy and another reported as 2019(4) CivCC 393, where in
an earlier suit, a prayer was made for declaration of title and injunction on the
basis of Will dated 05.12.2004 and a suit had been filed claiming a declaration
of title over the scheduled property and injuncting the defendant therein from
disturbing his title, possession and enjoyment, the said suit having been
dismissed under Order 9 Rule 8 CPC, instead of seeking restoration, a second
suit was filed seeking permanent injunction on the basis of Will only. The
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High Court decreed the suit of the plaintiff by allowing the second appeal,
however, the Hon'ble Supreme Court set aside the judgment passed by the
High Court holding that the High Court erred in law in holding that the
subsequent suit was based on a different cause of action and was hence
maintainable. The subsequent purchaser had only stepped into the shoes of the
original plaintiff and cannot have any better rights than the original plaintiff.
Reference may also be made to the judgment in the matter of M/s
Virgo Industries(Engg.) Private Limited's case(supra). While dealing with
the scope of Order 2 Rule 2 CPC. The facts of the said case are that the
plaintiff instituted two civil suits bearing Nos.831 and 833 of 2005 seeking a
decree of permanent injunction and restraining the defendant from alienating,
encumbering or dealing with the scheduled properties on the basis of two
agreements of sale entered by the plaintiff and defendant on 27.07.2005 in
respect of two different parts of immovable property. It was specifically stated
in each of the said suits that the plaintiff had paid different amounts under the
agreement of sale to the defendants and alleged that the defendants were
attempting to frustrate the agreement in question which fixed a period of six
months for execution of the sale-deeds and that the said period was not yet
over. The plaintiff did not claim specific performance of the agreement and
sought leave of the court to omit the claim of specific relief to sue for the said
relief at a later point of time, if necessary. Thereafter, two other civil suits
bearing Nos.202 and 203 were filed before the District Judge for seeking a
decree against the defendant for execution and registration of the sale-deeds in
respect of the same property and for delivery of possession thereof by making
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a specific mention of the earlier civil suits for permanent injunction. The
defendant approached the Madras High Court claiming that the subsequent suit
for seeking execution of the sale-deed were not maintainable under Order 2
Rule 2 CPC. Since the cause of action in both sets of suits was the same
namely the refusal or reluctance of the defendant to execute the sale-deed in
terms of the agreement executed amongst the parties. Hence, at the time of
filing of the first set of suit for permanent injunction, it was open for the
plaintiff to seek execution of the agreements as well and he having opted not to
do so, the subsequent suits were barred under Order 2 Rule 2 CPC. The High
Court came to a conclusion that the cause of action to seek the relief of specific
performance had not matured as on the date when first set of civil suit Nos.831
and 833 were filed and held that Order 2 Rule 2 CPC was not attracted.
Against the dismissal of the same, SLP No.1088 with 1184 of 2010 bearing
civil appeal Nos.6372 and 6373 of 2012 filed. The Hon'ble Supreme Court
noticed the principles laid down in the judgment of the Constitutional Bench in
the matter of Gurbax Singh Versus Bhooralal, reported as AIR 1964 Supreme
Court 1810 to be recalled as under:-
"In order that a plea of a bar under Order 2, Rule 2 (3), Civil
Procedure Code should succeed the defendant who raises the
plea must make out(1) that the second suit was in respect of the
same cause of action as that on which the previous suit was
based, (2) that in respect of that cause of action the plaintiff
was entitled to more than one relief, (3) that being thus entitled
to more than one relief the plaintiff, without leave obtained
from the Court, omitted to sue for the relief for which the
second suit had been filed. From this analysis it would be seen
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that the defendant would have to establish primarily and to
start with, the precise cause of action upon which the previous
suit was filed, for unless there is identity between the cause of
action on which the earlier suit was filed and that on which the
claim in the later suit is based there would be no scope for the
application of the bar."
Further, the Hon'ble Supreme Court also referred to as to what
would constitute a cause of action under Order 2 Rule 2(2) and (3) CPC and
referred to the opinions rendered on the issue including the judicial
pronouncements as well as the definition given in Halsbury's Law of
England (4th Edition), which is extracted below:-
"Cause of Action" has been defined as meaning simply a
factual situation existence of which entitles one person to
obtain from the Court a remedy against another person. The
phrase has been held from earliest time to include every fact
which is material to be proved to entitle the plaintiff to succeed,
and every fact which a defendant would have a right to
traverse. 'Cause of action' has also been taken to mean that
particular action the part of the defendant which gives the
plaintiff his cause of complaint, or the subject-matter of
grievance founding the action, not merely the technical cause of
action."
(emphasis supplied)
In view of the said background, the Hon'ble Supreme Court
considered that where even though a leave had been prayed for in the earlier
suit but had not been granted by the court, what would be the effect and
applicability of Order 2 Rule 2 CPC. It was held that the plaintiff specifically
claimed the facts and events that had occurred entitling him to contend that the
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defendant had no intention to honour the agreements dated 27.07.2005 and that
it was open for the plaintiff to incorporate the relief of specific performance as
the foundation for the relief of permanent injunction furnished a complete
cause of action to also sue for the relief of specific performance. The judgment
of the High Court was accordingly set aside and the subsequent suits were
dismissed.
Further, the said judgment of Virgo Industries(supra) has also
been followed by the Hon'ble Supreme Court in the matter of Vurimi Pullarao
Versus Vemari Vyankata Radharani, reported as 2020(14) SCC 110, where a
subsequent suit for specific performance was held to be barred under Order 2
Rule 2 CPC on the ground of an earlier suit for injunction. The operative part
of the judgment of the Hon'ble Supreme Court is extracted as under:-
"12. Mr. Shashibhushan P. Adgaonkar, learned counsel
appearing on behalf of the appellant submitted that in order to
attract the bar under Order 2 Rule 2, an essential requirement
is that there must be an identity between the cause of action
which forms the basis of the earlier suit and the cause of action
on which the claim in the later suit is based. Relying on the
decision of the Constitution Bench in Gurbux Singh v
Bhooralal AIR 1964 SC 1810 [LQ/SC/1964/152] , it was urged
that for the bar under Order 2 Rule 2 to be established, it is
necessary for the defendant to file the pleadings in the previous
suit in evidence so as to prove to the Court in the subsequent
suit that there is an identity of the cause of action in the two
suits. In the present case it was submitted that the defendant
failed to do so. Learned Counsel urged that the plaint in the
earlier suit was not shown to the plaintiff in the subsequent suit
at the stage when the evidence was adduced, as a result of
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which the plaintiff was deprived of the opportunity to establish
the absence of identity between the causes of action in the two
suits. Moreover, it was submitted that the Trial Court proceeded
to hold that the suit for specific performance was barred under
Order 2 Rule 2 without framing a specific issue. Learned
counsel submitted that the first appellate court could have
framed an issue and sought a determination thereon by the
Trial Court after allowing evidence to be adduced or it could
have alternatively made the determination itself upon
production of additional evidence under Order XLI Rule 27.
Neither of these courses of action was adopted and hence it has
been submitted that the bar under Order 2 Rule 2 does not
stand attracted.
13. On the other hand, supporting the view which weighed with
the Trial Court, the appellate court and the High Court, it has
been urged by Mr Satyajit A Desai, that the plaint in the earlier
suit contains a clear reference to the agreement to sell, to the
payment of consideration and to the notice of performance that
was issued by the plaintiff. Not only this, para 2 of the plaint
contained a specific recital of the fact that the plaintiff intended
to institute a suit for specific performance before the Court of
the Civil Judge, Senior Division, Khamgaon. Despite this, it
was submitted that the plaintiff omitted to seek leave of the
court under Order 2 Rule 2(3). This, it was submitted, must
necessarily result in the bar under the provision being
attracted. Learned counsel submitted that the distinction with
the situation as it arose before the Constitution Bench in
Gurbux Singh (supra) is that in the present case, the plaint in
the earlier suit was duly marked as an Exhibit without any
objection from the plaintiff. Learned counsel in that regard has
also relied upon on the decisions of this Court in Virgo
Industries (Eng.) Private Limited v Venturetech Solutions
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Private Limited (2013) 1 SCC 625 [LQ/SC/2012/762] and
Pramod Kumar v Zalak Singh (2019) 6 SCC 621
[LQ/SC/2019/891] .
xx xx xx xx
15. Order 2 Rule 2(1) is premised on the foundation that the
whole of the claim which a plaintiff is entitled to make in
respect of a cause of action must be included. However, it is
open to the plaintiff to relinquish any portion of the claim in
order to bring the suit within the jurisdiction of the Court.
Order 2 Rule 2(1) adopts the principle that the law does not
countenance a multiplicity of litigation. Hence, a plaintiff who
is entitled to assert a claim for relief on the basis of a cause of
action must include the whole of the claim. A plaintiff who
omits to sue in respect of or intentionally relinquishes any
portion of the claim, shall not afterwards be entitled to sue in
respect of the portion omitted or relinquished. This is the
mandate of Order 2 Rule 2(2). Order 2 Rule 2(3) stipulates that
a person who is entitled to more than one relief in respect of the
same cause of action may sue for all or any of such reliefs.
However, a plaintiff who omits to sue for all the reliefs, without
the leave of the Court, shall not afterwards sue for any relief so
omitted. The leave of the Court will obviate the consequence
which arises under Order 2 Rule 2(3). In the absence of leave
being sought and granted, a plaintiff who has omitted to sue for
any of the reliefs to which they were entitled to sue in respect of
the same cause of action would be barred from subsequently
suing for the relief which has been omitted in the first instance.
The grant of leave obviates the consequence under Order 2
Rule 2(3). But equally, it is necessary to note that Order 2 Rule
2(2) does not postulate the grant of leave. In other words, a
plaintiff who has omitted to sue or has intentionally
relinquished any portion of the claim within the meaning of
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Order 2 Rule 2(2), shall not afterwards be entitled to sue in
respect of the portion so omitted or relinquished."
Further, the issue as regards legal principles of "estoppel and res
judicata" were examined by the Hon'ble Supreme Court in the matter of Dadu
Dayalu Mahasabha, Jaipur(Trust) Versus Mahant Ram Niwas and another,
reported as 2008(2) RCR(Civil) 936: 2008(11) SCC 753. The distinction was
carved out by referring to the previous judgments and culling out the
ingredients of invoking Section 11 CPC relying on the judgment of the
Hon'ble Supreme Court in the matter of Sheodan Singh Versus Daryao
Kunwar, reported as [1966] 4 SCR 300, which reads thus:-
"9. A plain reading of Section 11 shows that to constitute a
matter res judicata, the following conditions must be satisfied,
namely-
(i) The matter directly and substantially in issue in the
subsequent suit or issue must be the same matter which was
directly and substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same
parties or between parties under whom they or any of them
claim;
(iii) The parties must have litigated under the same title in the
former suit;
(iv) The court which decided the former suit must be a court
competent to try the subsequent suit or the suit in which such
issue is subsequently raised; and
(v) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally decided by
the court in the first suit. Further Explanation 1 shows that it is
not the date on which the suit is filed that matters but the date
on which the suit is decided, so that even if a suit was filed
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later, it will be a former suit if it has been decided earlier. In
order therefore that the decision in the earlier two appeals
dismissed by the High Court operates as res judicata it will
have to be seen whether all the fine conditions mentioned above
have been satisfied."
It is observed that once the issues which arise in the subsequent
suit were directly or substantially in issue in the earlier suit, indisputably
Section 11 of CPC would become applicable. It was held that once the issue of
entitlement stood determined, the same would also operate as res judicata.
Paragraph Nos.30 and 31 of the judgment in the matter of Dadu Dayalu
Mahasabha's case(supra), are required to be reproduced as under:-
"30. Yet again in Home Plantations Ltd. vs. Talaku Land
Board, Peermada and another: (1999) 5 SCC 590
[LQ/SC/1998/1064] .
"An adjudication is conclusive and final not only as to
the actual matter determined but as to every other matter which
the parties might and ought to have litigated and have had it
decided as incidental to or essentially connected with the
subject-matter of the litigation and every matter coming within
the legitimate purview of the original action both in respect of
the matter of claim or defence. The principle underlying
Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken to be
the same thing as if the matter had been actually controverted
and decided. It is true that where a matter has been
constructively in issue it cannot be said to have been actually
heard and decided. It could only be deemed to have been heard
and decided. The first reason, therefore, has absolutely no
force."
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It was furthermore opined:-
"26. It is settled law that the principles of estoppel and res
judicata are based on public policy and justice. Doctrine of res
judicata is often treated as a branch of the law of estoppel
though these two doctrines differ in some essential particulars.
Rule of res judicata prevents the parties to a judicial
determination from litigating the same question over again
even though the determination may even be demonstratedly
wrong. When the proceedings have attained finality, parties are
bound by the judgment and are estopped from questioning it.
They cannot litigate again on the same cause of action nor can
they litigate any issue which was necessary for decision in the
earlier litigation. These two aspects are "cause of action
estoppel" and "issue estoppel". These two terms are of common
law origin. Again, once an issue has been finally determined,
parties cannot subsequently in the same suit advance
arguments or adduce further evidence directed to showing that
the issue was wrongly determined. Their only remedy is to
approach the higher forum if available. The determination of
the issue between the parties gives rise to, as noted above, an
issue estoppel. It operates in any subsequent proceedings in the
same suit in which the issue had been determined. It also
operates in subsequent suits between the same parties in which
the same issue arises. Section 11 of the Code of Civil Procedure
contains provisions of res judicata but these are not exhaustive
of the general doctrine of res judicata. Legal principles of
estoppel and res judicata are equally applicable in proceedings
before administrative authorities as they are based on public
policy and justice."
This Court opined that the Law of England as enunciated
by the House of Lords in Arnold vs. National Westiminster (sic)
Bank Plc.: (1991) 2 AC 93 = (1991) 3 All ER 41, HL to hold
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that the said principle will have no application in India
stating:-
"30. Mr. Salves assertions based on the aforesaid decision of
the House of Lords may be valid to an extent but then in view of
the principles of law laid down by this Court on the application
of res judicata and estoppel and considering the provisions of
Section 11 of the Code, we do not think there is any scope to
incorporate the exception to the rule of issue estoppel as given
in Arnold v. National Westminster Bank Plc.3
31. Law on res judicata and estoppel is well understood in
India and there are ample authoritative pronouncements by
various courts on these subjects. As noted above, the plea of res
judicata, though technical, is based on public policy in order to
put an end to litigation. It is, however, different if an issue
which had been decided in an earlier litigation again arises for
determination between the same parties in a suit based on a
fresh cause of action or where there is continuous cause of
action. The parties then may not be bound by the determination
made earlier if in the meanwhile, law has changed or has been
interpreted differently by a higher forum. But that situation
does not exist here. Principles of constructive res judicata
apply with full force. It is the subsequent stage of the same
proceedings. If we refer to Order XLVII of the Code
(Explanation to Rule 1) review is not permissible on the ground
"that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by the
subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment".
31. Principle of issue estoppel and constructive res judicata
had also been discussed at some length by this Court in Bhanu
Kumar Jain (supra) to hold:-
"29. There is a distinction between "issue estoppel" and
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"res judicata". (See Thoday v. Thoday)
30. Res judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality
between the parties whereas the doctrine issue estoppel is
invoked against the party. If such an issue is decided against
him, he would be estopped from raising the same in the latter
proceeding. The doctrine of res judicata creates a different kind
of estoppel viz. estoppel by accord."
Hence, for attracting and applying the principles of res-judicata or
issue estoppel, an adjudication and determination on the issues has been
mandated. In the absence of determination of the issue, the estoppel would not
get attracted by a deeming fiction. A dismissal for defendant may prohibit
institution of suit for the same cause but cannot be interpreted to hold that it
would also amount to a returning of findings on the issues framed, against the
plaintiff.
The position in law being well settled, the essential ingredients for
attracting the bar under Order 2 Rule 2 CPC needs to be understood. The same
are as under:-
i) Every suit shall include the whole of the claim which the plaintiff
is entitled to make in respect of "the cause of action";
ii) The plaintiff may relinquish any portion of his claim to bring the
suit within jurisdiction;
iii) If the plaintiff omits or intentionally relinquishes any portion of
claim, he shall not sue in respect of the said portion omitted or relinquished;
The requirement for imposing the operative bar under Order 2
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Rule 2 CPC, thus is in relation to "the specific cause of action". The abovesaid
provision does not mandate that a plaintiff must bring together all claims with
respect to different causes of action that may have accrued on the date of
institution of the suit. The prohibition under Order 2 Rule 2 CPC has to be
read in light of the mandate prescribed under Order 2 Rule 1. The use of word
"the" before "cause of action" instead of expression "a" or "every" before
"cause of action" is vital. The legislature thus intended to impose the bar with
respect to the specific cause of action that had been invoked for institution of
"the suit" and if every relief pertaining to the cause of action invoked in the
suit is not raised, the other reliefs for the same cause cannot be claimed in a
successive suit.
The said provision does not prohibit a person from instituting a
separate suit for a separate cause of action that has also accrued in favour of
the plaintiff for a separate relief or claim. It also does not mandate that a suit
must pray for relief by clubbing all the "cause of actions" that have accrued in
favour of a plaintiff.
Similarly, the mandatory requirements for invoking the provision
of Order 9 Rule 9 CPC are as under:-
i) On the date fixed, only the defendant appears and the plaintiff
does not appear.
ii) The Court makes an order of dismissal of suit, unless the claim is
admitted in part or full.
iii) In the event of such a dismissal under Order 9 Rule 8, the plaintiff
is estopped from bringing fresh suit in respect of "the same cause of action".
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Hence the prohibition is against bringing a fresh suit for 'the same
cause of action'.
A conjoint reading of Order 2 Rule 2 CPC and Order 9 Rule 9
CPC establishes that while Order 2 Rule 2 prohibits bringing any fresh suit
with respect to any claim omitted or relinquished with respect to "the cause of
action", Order 9 Rule 9 prohibits institution of a fresh suit for the claims
already raised once the suit with respect to "the cause of action" is dismissed in
default.
"Cause of action" being a factual situation, existence whereof
entitles a person to obtain a remedy against another and which is required to be
proved to entitle the plaintiff to succeed. Thus the facts which give rise to
violation or breach of an established/accrued/perceived right and the facts
essential thereto are collectively/severally a cause of action.
The definition of 'cause of action' as relied by the Hon'ble
Supreme Court in the matter of Virgo Industries(supra) was accepted also to
mean "that particular action of defendant which gives the plaintiff cause for his
plaint, or the subject matter of grievance founding the action, not merely the
technical cause of action". Hence, the distinction of cause of action has been
drawn not only on the basis of the trigger event giving rise to a cause for the
institution of a plaint but also on the basis of subject matter. The use of
expression "or" is again of vital significance and gives a right to the plaintiff to
institute a plaint on either of the said two causes. Where the subject matter is
same but the trigger event is different, giving rise to a distinct and an
independent claim, the Hon'ble Supreme Court has recognized it as an
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independent cause of action.
In the said legal position, the nature of both the suits, the parties,
the relief claimed, the right violated etc. are thus required to be taken into
consideration before such an impediment can be imposed against a plaintiff.
Besides, while ascertaining such a prohibition, a Court of law is
also required to be alive to and conscious of the well-settled law that
procedural laws are handmaiden of justice and that they have to be interpreted
to further the interests and rights of the parties and by noticing the prejudice
caused, if any, to the other party. An accrued substantive right would
ordinarily be protected. Being an aid to the substantive rights, a right must
establish in favour of the other before the procedural law is invoked to axe the
claim of the plaintiff.
In the said background, the crucial aspects pertaining to
determining cause of action are being culled out to ascertain whether the
declaratory suit No.438/1982 was barred under Order 2 Rule 2 read with Order
9 Rule 9 CPC. Counsel having conceded that Section 11 CPC is not attracted,
the same is hence not being gone into. The salient features and characters are
being tabulated as under:-
Sr.No. Civil Suit No.438 of 1982 Sr.No. Civil Suit No.243 of 1979
1. Suit is for declaration for setting 1. Suit is for injunction to restrain
aside consent decree dated Gorkha and Ved Parkash from
02.06.1980 passed in Civil Suit interfering in possession of Ram
No.296 of 1980. Dia.
2. By virtue of the consent decree, 2. The said civil suit was against
Gorkha was to execute the Gorkha and Ved Parkash due to
agreement to lease for a period of their interference in possession of
70 years in favour of Har Narain
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on the basis of an agreement in plaintiff-Ram Dia.
his favour dated 09.12.1978.
3. The declaratory suit was against 3. The injunction suit was only
Har Narain, Gorkha and Ved against Gorkha and Ved Parkash.
Parkash.
4. The cause accrued when plaintiff 4. The cause of action accrued on
came to know about consent 14.05.1979 when defendants
decree in execution of decree threatened to dispossess Ram Dia,
dated 02.06.1980 was filed for hence the cause for Civil Suit
seeking possession on No.438 of 1982 had not accrued to
07.08.1980 and notice was the knowledge of Ram Dia when
served. Title over suit land is a suit was filed. Title is ancillary and
pre-requisite to be pleaded and primarily possession is required to
claimed before annulment of be established and proved in an
decree could be sought. injunction suit.
5. The consent decree dated 5. There was no knowledge of the
02.06.1980 had been obtained consent decree on the date of
without knowledge of plaintiff- institution or amendment of the
Ram Dia and hence he had no civil suit. Gorkha and Ram Dia do
cause till knowledge is not make any mention of the
established. consent decree dated 02.06.1980
even in the joint written statement
filed by them on 15.03.1981(Ex.D-
19) and hence concealed the said
fact despite knowledge and
admission is made about agreement
to sell in favour of Ved Parkash
dated 12.07.1979 to claim
possession over suit land. The
cause of action was thus solely and
in relation to the agreement to sell
dated 12.07.1979 in favour of Ved
Parkash which was being used to
interfere in possession of Ram Dia.
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6. The plaintiff claimed reliance on 6. Reference to Will is to prove
the Will to claim his title over the possession and to defend the same.
entire land.
Considering it from the above perspective, it is evident that both
the suits arise from a different cause of action due to distinct acts of
infringement of separate rights. The trigger events were unrelated and
independent though w.r.t. same property. Mentioning of facts for staking claim
for protection of his rights should not be construed akin to giving rise to the
cause of action and thus attracting the prohibition. Hence considering it from
the above peculiar fact and situation and law as discussed, it cannot be said
that "cause of action" for both the suits is same and would be hit by Order 2
Rule 2 or Order 9 Rule 9 CPC. The non-suiting of the appellant-plaintiff for
the said reason is thus based on misreading of the statutory provision and
misreading of the documents established on record. The finding recorded on
the said issue is hence liable to be set aside and reversed.
Besides, it should not be lost sight of that the plaintiff was acting
under a bonafide legal advice. The plaintiff should thus not be made to suffer
for believing legal advice rendered in good faith. Thus, equity would
otherwise be required to be invoked under Order 41 Rule 33 CPC. The
abovesaid provision has been conferred on the appellate court for furtherance
of justice. The ends of justice would not be ordinarily sacrificed to confer a
right in another for a technical procedural requirement. A mere stage of
framing of an issue, not leading to a determination of any issue should not be
construed as an issue decided.
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The judgment in the matter of Virgo Industries(supra) and relied
upon by the defendant-respondent is not applicable to the facts of the present
case. In the said case, the plaintiff had filed the suit for injunction to restrain
the defendant from alienating the property to a third party since an agreement
had been executed with him and the defendant was not willing to execute the
sale. The relief for specific performance was not claimed. It was noticed by
the Hon'ble Supreme Court that refusal of defendant to honour the agreement
led to institution of the suit. Hence, the cause of action was same for
injunction suit as well as suit for specific performance. The provision of Order
2 Rule 2 CPC was thus held to be applicable.
To the contrary, at the time when injunction suit had been filed
against Ved Parkash, in the present case there was no sale-deed in his favour in
existence and the appellant-plaintiff was a third party having no knowledge
and even the decree had not been suffered. The agreement dated 09.12.1978
with Har Narain or the consent decree dated 02.06.1980 in Civil Suit No.296
of 1980 was never in the knowledge of Ram Dia as on the date of institution of
civil suit No.243 of 1979 and the same had not been pleaded or sought to be
enforced or declared by Ved Parkash. Hence, the judgment of the Hon'ble
Supreme Court in the matter of Virgo Industries(supra) is not applicable either
on facts or on legal contours to the facts of the present case. Needless to
mention that a position of law has to be appreciated on facts of each case and
once the facts are distinct and not attracted, the ratio cannot be blindly applied.
Similarly, the judgment in the matter of Vurimi Pullarao(supra)
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would also not be helpful to the respondent-defendant. Identity of the cause of
action is the hallmark of attracting the bar. The distinguishing features giving
rise to distinct and separate cause of actions have already been highlighted.
Thus, the said judgment would also not advance the case of the respondents
any further.
The findings recorded concurrently by the Courts against Ram Dia
on the said issue of bar under Order 2 Rule 2 and Order 9 Rule 9 CPC are
accordingly reversed and returned in favour of the appellant-plaintiff Ram Dia.
The same leads to the next question as regards admissibility of the
evidence of Amar Singh in support of the Will dated 21.04.1976 executed by
Munshi in favour of Ram Dia. It is not in dispute that the said witness had not
stepped into the witness box in civil suit No.438/1982 and that an application
under Order 41 Rule 27 CPC had been filed by the appellant for leading
additional evidence. It was noted by the Additional District Judge that the
evidence of Amar Singh is not necessary and that the matter can be adjudicated
on the strength of the evidence already on record but still dismissed the appeal
by holding that the evidence of Amar Singh had not been brought on record.
An application for additional evidence had also been moved with the present
appeal. Nonetheless, the testimony of Amar Singh is already on record having
appeared as PW4 in one suit and as DW2 in another. In the said testimony,
Amar Singh as attesting witness has specifically stated about execution of the
Will by Munshi in his presence and that the Will had been written by the scribe
as per the directions of Munshi and the same was read over to Munshi as well
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as the witnesses and that the thumb impressions had been affixed after
accepting the same to be correct. It was also stated that the Tehsildar also
posed a specific question about the nature of document to which Munshi had
replied that the same is a Will in favour of his nephew Ram Dia after his death
and that the thumb impressions were thereafter obtained by the Tehsildar in his
presence. Order 41 Rule 27(1)(aa) mandates the party seeking production of
additional evidence to establish that notwithstanding due diligence, such
evidence was not in his knowledge at the time when the evidence was led by
him.
Order 41 Rule 27(1)(b) empowers the appellate court to allow
additional evidence to be produced or any witness to be examined to enable to
pronounce judgment or for any other substantial cause. In the event the
contention of Ram Dia is to be tested on the parameter as to whether there was
any sufficient cause or explanation for failure to lead additional evidence,
apparently sufficient circumstances do not exist, however, the situation in the
present case is at a slight different footing. All these cases have been clubbed
together and being inter-related are being heard together. The deposition of
Amar Singh is already recorded in the other civil suits, however, in the said
civil suits, deposition of the attesting witness had been disregarded solely on
account of failure to prove the Will in civil suit No.438 of 1982. The courts
invariably were required to examine their respective evidence before placing
reliance on a judgment passed in relation to a document in any other suit.
Once, the finding against the Will was recorded against Ram Dia for failure to
produce the attesting witness, in the other civil suits, the court should not have
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blindly adopted the said finding notwithstanding that the testimony of the Sub-
Registrar as well as the attesting witness was available on its own record in the
said civil suit. The acceptance of the argument advanced by counsel for Ved
Parkash that the evidence now before this Court as led in other civil suit should
not be read is likely to lead to an absurd situation where even though the
testimony of the attesting witness Amar Singh is required to be read, applied
and interpreted with respect to the same Will in other suits and yet to be
disregarded in civil suit No.438 of 1982. Hence, while taking aid of Order 41
Rule 27(1)(b), I deem it appropriate to read the evidence of Amar Singh
[attesting witness to the Will dated 21.04.1976] in witness box in the connected
civil suit instead of seeking re-recording of testimony at this stage and after
more than 34 years when the witness is already dead.
A reading of the testimony of the attesting witness Amar Singh
shows that the execution of the Will took place in the presence of the said
witness and that the Will was written on the instructions of Munshi and the
contents thereof were read over to him. He affixed his thumb impressions after
accepting the same and thus of the opinion that the Will in question should not
have been discarded for want of proof due to non-appearance of the attesting
witness. Having said so, it is now necessary to advert to the argument of the
appellant that the Will was none-the-less a suspicious document since it did not
make a reference to the living brother Gorkha and the property in question has
been vested in Ram Dia. The supplementary argument raised by respondents
for Will to be discarded is that Munshi was not staying with Ram Dia and was
living separate in his residence.
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It is well-settled position in law that a registered Will executed by
an attestator is a solemn document and the courts are required to make an
attempt to give effect to the wish of the testator, who is no more in the world.
A registered document has a presumption of genuineness and the courts would
not ordinarily be justified in ignoring the registered Will unless there are strong
suspicious circumstances creating doubt in the mind of a reasonable person
about its genuineness.
This Court in the judgment of Bant Singh Versus Didar Singh,
reported as 2018(1) PLR 327 in RSA No.433 of 2007 had observed that while
executing the Will, the testator is not required to give reasons as to why he is
preferring a particular person for bequeathing his property. The non-
mentioning of about other family members may give rise to a suspicion and lay
foundation for a potential legal challenge, however, the said ground does not
necessarily invalidate the Will. The test applied is that of a reasonable person
with ordinary prudence. It is required to be kept in mind that Gorkha was not
residing with the family and had abandoned them and staying in a Dera,
although renunciation may not be proved. The requirements prescribed for
proving Sanyas and to presume civil death may not be established but there is
nothing on record to prove that Gorkha had maintained any relationship with
Munshi. He was also not in an immediate line of succession as a Class I heir.
There is also no evidence to establish that the relationship amongst brothers
was live, healthy and cordial so as to find a mention.
Since law is required to step into the shoes of the testator and in
the absence of any sound subsisting relationship between brothers, it cannot be
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prima-facie held that a mere non-mentioning about the brother would render
the testament suspicious. Such a circumstance may be relevant only when it is
established that they had huge love and affection for each other and that there
was no reason to execute Will in favour of a 3 rd party. No such evidence has
been brought on record and there is no cogent/convincing evidence also to the
effect that Ram Dia was not taking care of material and emotional needs of
Munshi other than a mere fact that Munshi used to live in a separate house. It
is on record that even though Munshi was residing separately, however, he was
common in mess with Ram Dia. There is also nothing on record or any claim
made by the respondents that deceased Munshi was being taken care of by any
person other than Ram Dia. Thus, a mere non-mentioning about the brother,
under a recital given in the Will, cannot be held to be a strong and suspicious
circumstance unto itself so as to annul the solemn Will of the deceased.
While examining the admissibility of the Will, the court is
required to see whether the legal formalities required for admissibility and
proof of a document and its due registration in the nature of signature,
witnesses, testamentary capacity etc. are fulfilled or not. The said aspects
stand satisfied as per the requirement prescribed in law. The second
consideration which prevails in the mind of the court is with respect to the
intention of the testator and if there is prima facie satisfactory explanation
about intentionally omitting a family member, even if the same is for reasons
explained later, the court may still uphold the Will despite the secondary
omission. Further, the aspect required to be ruled out is as to whether the Will
has been obtained under some undue influence or coercion and whether there
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is enough evidence of manipulation and pressure on the testator leading to
execution of the Will in any particular form or manner. No such evidence has
been led or established on record and no fraud or coercion has been proved.
Additionally, this court also takes into consideration the fact that
the mutation in favour of Ram Dia was contested by Gorkha himself and that
he lost before the revenue courts i.e. before the court of Assistant Collector,
Collector as well as before the Commissioner. Subsequently, a civil suit was
also filed by Gorkha which such civil suit was dismissed on account of demise
of Gorkha. Further, no evidence has been led by the successor claiming
through Gorkha (Ved Parkash) to the effect that the Will in question was not
executed by Munshi or that it did not carry his thumb impressions or that he
was not in a capacity to execute the Will or that the same was done under any
undue influence or coercion despite being a co-plaintiff with Gorkha in the
said civil suit. The bar sought to be applied against Ram Dia would also come
in action against Ved Parkash as the judgment and decree in question had
attained finality.
Although, it is stated that some time before his death, Munshi was
not well, however, the same cannot be read as an incapacity of a person to
understand the nature of the document and further it is also not in dispute that
the Will in question was executed on 21.04.1976 whereas Munshi died in June
1978 i.e. more than two years after the execution of the Will. There is no
evidence other than a self-serving statement about the incapacity of Munshi to
execute the Will. Hence, I am of the view that there are no sufficient
suspicious circumstances on the basis whereof the execution of the Will may
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be held to be bad.
Having held so, the question which next arises is with respect to
the property of Munshi and as to whether the same would transfer in favour of
Gorkha on demise of Munshi on 04.06.1978.
In view of the evidence referred to above and the position in law,
even if it is assumed that the property was ancestral (though not pleaded) in the
hands of Munshi, however, it is not in dispute that Munshi was unmarried and
had no other issue, hence, the said property was sole and exclusive in the hands
of Munshi. Hence, he was capable of alienating it in any manner as he deemed
appropriate. The registered Will having been executed on 21.04.1976, mutation
No.1977 with respect to the estate of Munshi was rightly sanctioned in favour
of Ram Dia. The finding recorded by the court vesting the property of Munshi
in favour of Gorkha on the principle of survivorship for want of evidence for
proving the Will dated 21.04.1976, is accordingly set aside and appellant-
Ram Dia is declared as owner in possession, to the extent of the property
inherited by Munshi from Tokha on the basis of the Will. However, in so
far as the claim of Ram Dia that Gorkha had renounced the world and
had adopted a religious order is concerned, the said aspect does not stand
established or proved. Rather, the evidence on record suggests that Gorkha
had an active involvement in the worldly affairs noticing that he had also
initiated proceedings in relation to mutation being sanctioned in favour of Ram
Dia on demise of Munshi; instituted proceedings under Sections 107/151
Cr.P.C. against Ram Dia, instituted civil suit for declaration against Ram Dia,
had suffered a collusive decree with respect to the land in question in favour of
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Har Narain and had also collected compensation for the land acquired.
Besides, there is no evidence which establishes that he had actually renounced
the worldly affairs by joining any religious order other than a self-serving
statement by Ram Dia who claimed that he had never seen Gorkha and that he
had become a Sanyasi much prior to Ram Dia being born. The said statement
was discarded and disbelieved by the courts concurrently on noticing that the
litigation inter se between Gorkha and Ram Dia suggests to the contrary.
Hence, it cannot be declared that Gorkha had renounced the worldly affairs by
joining any religious order. Besides, there is no date of such renunciation
mentioned. Further, Munshi never sought any such declaration of ownership
during his lifetime with respect to the estate of Gorkha who continued to be
reflected in the revenue record as owner in joint and cultivating possession.
Hence, under totality of the circumstances noticed above, it cannot be deemed
that Gorkha ought to be presumed as civilly dead and that the property ought to
be deemed as having devolved on Munshi at any time prior to his death, on
account of Gorkha renouncing the worldly affairs. Thus, the property
belonging to Gorkha and falling in his share due to succession from Tokha also
became an exclusive property in his hands and that even he is deemed to be a
lawful owner of the said property competent to deal with it, in any manner, as
he may deem fit.
Having held so, it is also noticed that the sale-deeds executed by
Gorkha in favour of Ved Parkash have not been assailed on the grounds of
illegality, fraud or coercion on which the same may be disregarded or
disbelieved. The claim of Ram Dia is based solely on a declaration of civil
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death of Gorkha and renouncing the worldly affairs by adopting a religious
order, which such plea has not been established or proved. It is not the case of
Ram Dia that Gorkha did not have a contractual capacity and that the sale-
deeds were without consideration, unlawful and were under coercion and
undue influence. Thus, the sale-deeds in favour of Ved Parkash are
accordingly upheld and he is declared to be owner of the property
purchased by him, to the extent of the share of Gorkha.
The last issue that arises for consideration is in relation to the
entitlement of Ram Dia to seek pre-emption of the suit. Even though the said
suit was initially contingent upon a declaration of Ram Dia as a co-sharer on
the strength of the Will dated 21.04.1976, however, it has remained undisputed
that partition had been finalized prior to the suit being decreed. The mandate
of law having been well-settled that a person seeking pre-emption should
continue to be the owner till the time of passing of a decree has remained well-
settled. Support in this regard may be drawn from the judgment of the Hon'ble
Supreme Court in the matter of Jhabbar Singh(deceased) through Legal
Heirs and others Versus Jagtar Singh reported as 2023 AIR (Supreme
Court) 2074.
"17. At this juncture, it would be also apt to mention that
apart from the fact that the right of pre-emption is very weak
right and capable of being defeated by all legitimate methods,
the pre-emptor must establish that he had the right to pre-empt
on the date of sale, on the date of the filing of the suit and on
the date of the passing of the decree by the Court of the first
instance. The pre-emptor or the claimant-plaintiff who claims
the right to pre-empt the sale on the date of sale, has also to
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prove that such right continued to subsist till the passing of the
decree of the first court. If the claimant-plaintiff loses that right
or the vendee improves his right equal or above the right of the
claimant before the adjudication of the suit, the suit for pre-
emption would fail.
19. The Constitution Bench in case of Shyam Sunder v. Ram
Kumar- also while examining the issues whether in a suit for
pre-emption, the pre-emptor should possess his right to pre-
empt on the date of sale and on the date of the decree of the
First Court, and whether the loss of that right after the date of
decree either by his own act or by an act beyond his control or
by any subsequent change in the legislation which is
prospective in operation during the pendency of the appeal
filed against the decree of the Court of First instance, would
affect the right of the pre-emptor or not, has laid down certain
principles, after making analysis of various decisions including
the decision of the Full Bench rendered by the Punjab and
Haryana High Court in Ramji Lal v. State of Punjab(supra).
"10. On an analysis of the aforesaid decisions referred to in
first category of decisions, the legal principles that emerge are
these:
1. The pre-emptor must have the right to pre-empt on the date
of sale, on the date of filing of the suit and on the date of
passing of the decree by the Court of the first instance only.
2. The pre-emptor who claims the right to pre-empt the sale on
the date of the sale must prove that such right continued to
subsist till the passing of the decree of the first court. If the
claimant loses that right or a vendee improves his right equal
or above the right of the claimant before the adjudication of
suit, the suit for pre-emption must fail.
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3. A pre-emptor who has a right to preempt a sale on the date
of institution of the suit and on the date of passing of decree,
the loss of such right subsequent to the decree of the first court
would not affect his right or maintainability of the suit for pre-
emption.
4. A pre-emptor who after proving his right on the date of sale,
on the date of filing the suit and on the date of passing of the
decree by the first court, has obtained a decree for preemption
by the Court of first instance, such right cannot be taken away
by subsequent legislation during pendency of the appeal filed
against the decree unless such legislation has retrospective
operation."
20. In the light of the afore-stated legal position, let us examine
whether the pre-emptor i.e., plaintiff Jagtar Singh had
established his superior right of pre-emption all through out
from the date of the execution of the sale deeds by the original
owner - vendor Jit Singh, till the date of filing of the suit as also
till the date of passing of the decree by the court of the first
instance.
26. In our opinion, it is difficult to subscribe the view taken by
the High Court in the impugned order that since no instrument
of partition was drawn on the date of passing of the decree by
the trial court, the joint status of the parties had not come to an
end. Having duly considered the provisions contained in
the Punjab Land Revenue Act and also the Haryana Land
Records Manual placed on record by the learned counsel for
the parties, it clearly emerges that as per Section 118 of
the Land Revenue Act, when there is a question as to the
property to be divided, or the mode of making a partition, the
Revenue Officer after such inquiry as he deems necessary, is
required to record an order stating his decision on the question
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and record his reasons for the decision. Sub section 2 of
Section 118 provides for an appeal to be preferred from
decision of the Revenue Officer on the question of property
to be divided, or the mode of making the partition. As such,
there is no further appeal provided against the order in appeal
passed under Section 118(2) of the Land Revenue Act. Section
119 deals with the administration of the property excluded from
partition referred to in Clause 2 of Section 112, with which we
are not concerned. Section 120 deals with the provisions with
regard to the distribution of revenue and rent after the
partition."
No judgment to the contrary has been cited by the counsel for the
appellant. Hence, the suit for pre-emption filed by appellant-Ram Dia was
rightly dismissed by the courts. There is no other issue which arises for
consideration.
In view of the above, it is ordered as under:-
The findings of both the Courts on issue Nos.3 and 8 are
reversed and it is held that the registered Will dated 21.04.1976 by Munshi
in favour of Ram Dia is a valid document entitling the appellant-plaintiff to
claim right and title to the estate of Munshi and that the suit is not barred
under Order 2 Rule 2 CPC or under Order 9 Rule 9 CPC. The present Regular
Second Appeal is however dismissed since Gorkha had every right to alienate
his share in the property. The decree passed concurrently by the Courts is
upheld.
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The suit filed by Ved Parkash for possession by way of specific
performance of the agreement dated 12.07.1979 against Ram Dia was decreed
by the Courts by disbelieving the Will of Munshi dated 21.04.1976.
Since the findings of the Court w.r.t. Will dated 21.04.1976 in
civil suit No.438/1982(RSA No.2227/1990) are reversed, hence, findings
recorded on issue Nos.2, 9 and 10 herein are reversed. Hence, even though
Gorkha may have entered into an agreement to sell on 12.07.1979 w.r.t. the
share of Munshi, yet, as a registered Will had already been executed by Munshi
in favour of Ram Dia with respect to his estate, hence, such agreement is not
binding on Ram Dia. Gorkha did not have any right to enter into any
agreement w.r.t. the said share in land and create 3rd party right. Consequently,
the decree passed by both Courts are set aside and the suit to the extent of
property of Munshi for specific performance of the agreement to sell dated
12.07.1979 is dismissed. The appeal is accordingly allowed.
The challenge being to the agreement to sell dated 12.07.1974; the
General Power of Attorney dated 01.04.1980 and sale-deed dated 09.06.1983
are with respect to the property of Gorkha. Ram Dia has no right or title over
the same. There is nothing on record to prove that the said documents were
invalid. The claim was based solely on the right due to Gorkha taking Sanyas,
which is not established. The appeal is accordingly dismissed.
RSA Nos.391 and 392 of 1995
Both these appeals were for seeking pre-emption of the sale by
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Gorkha in favour of Ved Parkash to the extent of his share in the property
succeeded from Tokha. Since the partition had already been effected before
the decree, the suits were rightly dismissed. The appeals are dismissed and
the judgment and decree passed by both the Courts are upheld since the
appellant ceased to be a co-sharer at the time of passing of the decree.
Ordered accordingly.
03 July, 2024 (VINOD S. BHARDWAJ)
seema JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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