Jagbir Singh And Another vs Shashi Prabha And Others
2025 Latest Caselaw 2231 P&H

Punjab-Haryana High Court

Jagbir Singh And Another vs Shashi Prabha And Others on 15 February, 2025

                                    Neutral Citation No:=2025:PHHC:022183




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    IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
 113                                        RSA-727-2021 (O&M)
                                     Date of decision: 15.02.2025

Jagbir Singh & Another
                                                                ...Appellant(s)
                                         Vs.
Smt. Shashi Prabha & Others
                                                              ...Respondent(s)
CORAM:              HON'BLE MS. JUSTICE NIDHI GUPTA

Present:-           Mr. Akashdeep Singh, Advocate
                    for the appellants.

                    Mr. Narender Kaajla, Advocate
                    for respondents No.2 & 3/Caveators.
                    ***
NIDHI GUPTA, J.

The plaintiffs are in second appeal against the

concurrent judgments and decrees of the learned Courts below whereby

the suit of the plaintiffs for declaration to the effect that the plaintiffs are

owners in possession of the suit land, has been dismissed with costs by

both the Courts below.

2. The parties shall hereinafter be referred to as per their

status before the learned trial Court i.e. the appellants herein shall be

referred to as 'the plaintiffs'; and the respondents herein shall be referred

to ass 'the defendants'.

defendants'

3. Brief facts of the case set out in the plaint are that the

plaintiffs filed the instant suit for declaration to the effect that the

plaintiffs are owners in possession of land measuring 245 Kanal, 15 Marla,

comprised d in Khewat no.5, Khatoni Nos.144 & 15, as per jamabandi for the

year 2003-04, 04, situated at village Khanda Kheri, Sub Tehsil Bass, District

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Hisar and the defendant No.2 is not the wife of defendant No.1 and she is

not entitled to claim herself as wife of defendant No.1 and judgment and

decree dated 09.12.1983 passed in civil suit titled as 'Jagbir etc. Vs. Jagat

Singh' in respect of 1/4th share, out of land measuring 245 Kanal, 15

Marla, transferred in favour of defendant No.5 No.5, is illegal, null and void and

subsequent mutation No.1637, dated 16.01.1984 is also illegal, null and

void and not binding on the rights of the plaintiffs and are liable to be set

aside and the alleged release deed of suit land measuring 61 Kanal, 9

Marlaa bearing No.790, dated 28.09.2010 allegedly executed and got

registered by defendant No.1 in favour of defendants No.3 & 4 is also

illegal, null and void and is liable to be set aside and plaintiffs have

become owners of the land measuring 245 Kanal, 15 Marla on the basis of

Will bearing No.88 dated 9.9.2002 2002 executed and got registered by Jagat

Singh, the father of the plaintiffs and the alleged Will No.61, dated

4.7.2012, is illegal, null and void and is result of undue influence, based on

fraud and misrepresentation misrepresentation and has no binding effect on the rights of the

plaintiffs and is liable to be set aside and the alleged Will dated

14.02.2007, is illegal, null and void and is result of undue influence, based

on fraud and misrepresentation and has no binding effect on the rights of

the plaintiffs and is liable to be set aside, alongwith consequential relief of

prohibitory and mandatory injunction restraining

from interfering into the possession of the plaintiffs over the suit land and

also from alienating or encumbering the same in any manner.

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4. It was further pleaded by the plaintiffs that the suit

land measuring 245 Kanal, 15 Marla as detailed and described in opening

para of judgment came into the hands of defendant No.1 from his

forefathers and therefore, the suit land was the ancestral property.

Marriage of Smt. Mam Kaur was was solemnized with defendant No.1 in

accordance with Hindu rites and ceremonies and plaintiffs were born out

of this wedlock and plaintiffs are the coparceners in the suit land by birth

being sons of defendant No.1.

No.1 Smt. Mam Kau Kaur, the mother of the

plaintiffs, died on 10.03.1996 and till her death, no divorce had taken

place between the mother of the plaintiffs and the defendant No.1. Smt.

Mam Kaur was living in i the village and defendant No.1 was serving as DPE

in Chhotu Ram Polytechnic College, Rohtak, and defendant No.2 starte started

living with defendant No. 1 since 1972 without getting married with him

and defendants No.3 to 5 were born from them and in this manner,

defendant No.2 is not entitled to claim herself to be the wife of defendant

No.1 and defendants No.3 to 5 are the illegitimate daughters and son of

the defendant No.1. Since, suit land was ancestral and coparcenary

property, therefore, defendants No.3 to 5 being illegitimate children, have

no right in the same. Prior to the judgment and decree dat dated 09.12.1983,

it was settled and and assured by defendant No. 1 tha that the plaintiffs would get

2/3rd share in the suit land i.e. 163 Kanal, 6 Marla, out of the total suit

land measuring 245 Kanal, 15 Marla and rest of the land will be

possession of 2/3rd share was transferred in their names as per law and po

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given by defendant No.1 to the plaintiffs and from that day, the plaintiffs

ming owner in possession of 2/3rd share of the ssuit land and are in are coming

cultivating possession of the same. About a week before, when

defendants came on the spot spo and tried to interfere into the possession of

the plaintiffs over the suit land and they declared that they have also got

transferred ed rest of the land from the defendant No.1 in favour of

defendants No.3 and 4 by way of alleged release deed, then the plaintiffs

made inquiries and came to know about the alleged release deed. The

defendant No.1 was having right to transfer only his 1/3 share in the suit

land and in this manner, the judgment and decree dated 09.12.1983,

passed in case titled Jagbir etc Vs. Jagat Singh, in respect of ¼ share

transferred to defendant No.5, is illegal, nul null and void and not binding

upon the rights of the plaintiffs plaintiffs and the alleged release deed No.790,

dated 28.09.2010 in respect of land measuring 61 Kanal, 9 Marla being ¼

share of total suit land, allegedly executed and got registered by

defendant No.1 in favour of defendants No.3 and 4 is also illegal, null and

void as defendant No.1 was not competent to transfer the land in excess

to his share. Defendant No.1, during his his lifetime, had executed and got

registered a Will No.88, dated 9.9.2002, whereby he bequeathed the suit

land to the plaintiffs and after death death of Jaga Jagat Singh, plaintiffs became

owners of the suit land and defendants have no concern whatsoever with

the suit land and the alleged Will No.61, dated 4.7.2012 is illegal, null and

void and is result of undue influence and is based on fraud and

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misrepresentation resentation and is not binding upon the rights of plaintiffs and is

liable to be set aside and the alleged Will dated 14.02.2007 is also illegal,

null and void and is result of undue inf influence, based on fraud and

misrepresentation presentation and has no binding effect on the rights of the plaintiffs

and is liable to be set aside. The plaintiffs asked defendants get the

judgment and decree and alleged release deed and subsequent mutation

cancelled to the share of the plaintiffs and not to interfere in the peaceful

possession of the plaintiffs plaintiffs over the suit land but d defendants flatly refused

to accede to the legal and genuine request of the plaintiffs. Hence, the

present suit.

5. Upon notice the defendant No.1 appeared and

contested d the suit on various grounds including that Civil Suit No.628 of

1983 was filed by the present plaintiffs plaintiff in which the plaint was drafted on

their instruction after admitting the contents thereof as true and correct;

and therefore, the judgment and decree passed in Civil Suit No.628 No.628-C-

1983 could not be challenged. Moreover, mutation No.1637 dated

16.01.1984 stood entered and sanctioned in the presen presence of plaintiff as

per his wishes. Furthermore, the suit land was the self self-acquired property

of defendant No.1 and the plaintiffs and defendant no.5 are the sons of

defendant No.1. First wife of defendant No.1 expired on 10.03.1996 and

defendant efendant No.1 duringg his lifetime had given divorce to Mam Kaur in

accordance with the Jamindari Custom and he had also separated from

the plaintiffs. Thereafter, defendant No.1 had performed Kareva marriage

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with defendant No.2 in the year 1972. Out of this wedlock, defendan defendants

No.3 to 5 were born. It was denied that defendants No.3 to 5 are

illegitimate children of defendant No.1; or that the suit land was ancestral

and coparcenary property. It was further averred that plaintiff No.1 while

claiming defendant No.5, to be his brother, brother, had filed civil suit No.628 of

1983 and in that suit, it was claimed that Jagbir, Vijaypal and Gatesh are

owners in possession of ¾ share and defendant No.1 is owner in

possession of ¼ share in the suit land and impugned release deed was

within the knowledge of plaintiffs from the very beginning. Answering

defendant used to reside with his daughters as plaintiffs used to beat him

and many time Panchayats were convened aand matter was reported to

the police.

lice. Judgment and decree passed in civil suit No.628 of 1983 and

subsequent mutation No.1637, dated 16.1.1984 are correct and legal. The

defendant no.1 had transferred land measuring 61 Kanal, 4 Marla i.e. ¼

share in the suit land, in favour of defendants No.3 and 4 by way of

release deed No.790, dated dated 28.09.2010 and said released deed is correct,

legal and valid and same was within the knowledge of the plaintiffs from

the very beginning. Rests of the averments of the plaint were denied

specifically and a prayer for dismissal of the suit was made. It iis pertinent

to mention here that during the trial, defendant No.1 expired expired.

6. Defendants No.2 to 5 filed their joint written statement

along the same lines;

line ; and a separate written statement was filed by

defendants No.3 and 4 also along the same line lines. Replication was filed by

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the appellants/plaintiffs controverting the averments of the written

statements and reiterating the ones made in the plaint.

7. On the basis of pleadings of the parties, following

issues were framed by the learned trial Court vide order dated

19.01.2011:--

"1. Whether the plaintiffs are entitled to be owner in possession of 2/3 share of total land measuring 245 Kanals, 15 Marlas comprised in Khewat No.5; Khatoni No.14 and 15, as per jamabandi for the year 2003 2003-04, situated at village Khanda Kheri, Sub Tehsil Bass, s, District Hisar? OPP

2. Whether the defendant No.2 is not the wife of defendant No.1 and she is not entitled to claim herself as wife of defendant No.1?OPP

3. Whether the judgment and decree dated 09.12.1983 passed in case titled 'Jagbir etc. Vs. Jagat Singh' in respect of ¼ share out of the total land measuring 245 Kanal, 15 Marla, which has been transferred in the name of defendants No.5 and resultant mutation ion No,1637, dated 16.01.1984, are illegal, null and void and are liable to be set aside? OPP

4. Whether the release deed No.790, dated 28.09.2010, in respect of land measuring 61 Kanal, 9 Marla, being ¼ share of total land measuring 245 Kana al, 15 Marla executed and got registered by defendant No.1 in favour of defenda defendants No.3 and 4, is illegal, null and void and is liable to be set aside? OPP

5. Whether the plaintiffs are entitle entitled for decree of injunction against the defendants? OPP

6. Whether the suit is bad for mis mis-joinder and non-joinder of necessary parties? OPD

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7. Whether the plaintiff has n no cause of action to file the present suit? OPD

8. Whether the suit is not maintainable? OPD

9. Relief."

8. Besides the aforesaid issues, vide order dated

29.05.2014, following additional issues were framed:

framed:-

09.09.2002 was validly executed in favour of plaintiffs by deceased Jagat Singh? OPP 2(a) Whether Will No.61, dated 04.07.2012 was validly executed? OPD 3(a) Whether Will dated 14.02.2007 was validly executed? OPD"

9. On the basis of the pleadings pleadings, and the oral and

documentary evidence adduced by the parties, the learned trial Court

decided issues No.1 to 5 and 1(a) 1 against the plaintiffs and in favour of the

defendants; issue No.2(a) in favour of the defendants on the basis of Will

No.61 dated 04.07.2012;

04.07.201 issue No.3(a) remained unproved as the

defendants failed to produce any witness to prove valid execution of the

Will dated 14.02.2007; issue No.6 was decided against the defendants and

in favour of the plaintiffs; issues No.7 and 8 against the plaintiffs and in

favour of the defendants; and therefore, suit of the plaintiffs was

dismissed with costs vide judgment and decree dated 19.10.2015 19.10.2015. The

appellants filed appeal against the aforesaid judgment and decree before

the learned Additional District Judge, Hisar,, which affirmed the above said

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judgment and decree of the learned trial Court and dismissed the appeal

of the plaintiffs with costs vide judgment and decree dated 14.11.2019 14.11.2019.

Hence, the present second appeal.

10. Learned counsel for the appellants/plaintiffs submits

that the impugned judgments and decrees of the learned Courts below

are liable to be set aside as they have erred in deciding the issue No.2

regarding legitimacy of respondents No.3 to 5. It is submitted that it is the

admitted case of the defendants that a Panchayati Divorce had been taken

between etween the defendants No.1 and mother of plaintiff's plaintiff's. Even as per

prevailing custom in North India, Karewa marriage only takes place when

the husband dies and the widow is married to the younger bro brother of the

deceased. However, in this case, Mam Kaur i.e. the previous wife of

defendant No.1 was still alive when defendant no.1 solemnized marr marriage

with defendant no.2 in 1973.

15.02.2025                                                   (Nidhi Gupta)
Sunena                                                       Judge

 Whether speaking/reasoned:      Yes/No
 Whether reportable:             Yes/No




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