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2000 DIGILAW 981 (PNJ)

Joginder Singh v. Sita Ram (Dead) through LRs.

2000-08-24

V.K.BALI

body2000
JUDGMENT V.K. Bali, J. (Oral) - This Regular Second Appeal has been filed by defendants, in the original lis, against judgment and decree of the learned first appellate Court, reversing, though partially, judgment and decree passed by the learned Subordinate Court. Whereas, suit instituted by the plaintiffs was dismissed in its entirety by the learned Subordinate Judge, it was partly decreed in an appeal preferred by the plaintiffs by the learned first Appellate Court. The sale made by Sahi Ram, that was subject matter of challenge before the Civil Court was held invalid to the extent of 2/5th share thereof. The suit was, thus, decreed for recovery of possession of 2/5th share in the suit land. 2. Before the contentions raised by Mr. Toor, learned counsel for the appellants, who are vendees of the sale from Sahi Ram, which became subject matter of challenge before the Civil Court, are noticed it shall be useful to extract, even though in brevity, relevant facts of the case. Sahi Ram was owner of land measuring 68 bighas, situated in village Raiwal, details whereof have been given in para 2 of the plaint. Out of the land aforesaid, Sahi Ram by virtue of registered sale deed dated December 21, 1964, sold 65 bighas of land to appellants-Joginder Singh, Banta Singh, Chand Singh and Mukand Singh sons of Gujjar Singh (here-in-after referred to as defendants). On March 15, 1973, one son of Sahi Ram and two sons of Chanan Ram son of Sahi Ram, namely, Gian Chand and Sukhdev Ram, who (Chanan Ram) predeceased his father, filed a suit for declaration and possession. It was, inter alia, pleaded by them that they constituted a Joint Hindu Family along with L. Sahi Ram. The Joint Hindu Family carried on the business of money lending and for that purpose they took lands on mortgage from other villagers. The Joint Hindu Family had advanced huge amount as loan to various persons and it owned extensive properties which were ancestral and coparcenary. Sahi Ram also purchased agricultural land with the help of nucleus of the Joint Hindu Family and its income and cash. That property was also thrown into the common pool. The ancestral property included agricultural land measuring 68 bighas, details whereof, as mentioned above, have been given in para No. 2 of the plaint. Sahi Ram also purchased agricultural land with the help of nucleus of the Joint Hindu Family and its income and cash. That property was also thrown into the common pool. The ancestral property included agricultural land measuring 68 bighas, details whereof, as mentioned above, have been given in para No. 2 of the plaint. It was further averred that on December 21, 1964 Sahi Ram sold 65 bighas of land to defendants through a registered sale deed. This sale was challenged on the following three grounds :- (i) that Sahi Ram had no power to sell the land. He was not the sole owner of this property and he wrongly represented that this property was his self- acquired property and that he was its sole owner. (ii) that the plaintiffs are owners of 2/3rd share of this property and Sahi Ram sold the above property in his individual capacity and as such the sale was void ab initio so far as the share of plaintiffs is concerned; (iii) that Sahi Ram at the time of sale was pretty old, imbecile and was not possessed of sound disposing mind and in fact his mental equilibrium was damaged. He was, thus, not competent to make this sale". It is significant to mention that Sahi Ram had four sons, namely, Chanan Ram, Sita Ram, Kulwant Rai and Jaswant Rai. Durgi was wife of Sahi Ram and survived him. The suit, as mentioned above, was filed initially by one son of Sahi Ram, namely, Sita Ram and two sons of Chanan Ram, who as mentioned above, predeceased his father. On the objection raised by the defendants, other sons of Sahi Ram, namely, Kulwant Rai and Jaswant Rai were impleaded as defendants. Concededly, they did not contest the case. In fact, in the reply filed on their behalf, Mr. Toor, learned counsel for the defendants informs the Court, they pleaded that there was no Joint Hindu Family or Joint Hindu Family property. Mr. Bhandari, learned counsel for the plaintiffs, at this stage, has brought to my notice a separate suit No. 169 dated 23.12.1965 filed by Kulwant Rai and Jaswant Rai, the other two sons of Sahi Ram, pertaining to the same very land. The said suit was withdrawn vide a statement made by them on January 13, 1966. Mr. Bhandari, learned counsel for the plaintiffs, at this stage, has brought to my notice a separate suit No. 169 dated 23.12.1965 filed by Kulwant Rai and Jaswant Rai, the other two sons of Sahi Ram, pertaining to the same very land. The said suit was withdrawn vide a statement made by them on January 13, 1966. The order, as per papers shown to me, reads as under :- "Present : Plaintiff along with the counsel Shri Kanwar Sain. Vide the statement of the plaintiff, the suit is hereby ordered to be dismissed. The file be consigned to the record room". A certified copy of plaint as also that of statement made by the plaintiffs of the aforesaid suit and uncertified copy of order passed by the Court, after perusal, have been returned to Mr. Bhandari, as requested by him. 3. The cause of plaintiffs was seriously contested by the defendants, who, in their written statment, pleaded that insofar as defendants knew, Sahi Ram was living separately from the plaintiffs and they had nothing in common either in their earnings or property or kitchen. Sahi Ram was employed somewhere and never came to the village nor did he ever share the usufructs of suit land. Gian Chand had also been living separately since long and had his own independent source of earning. The suit land was exclusively enjoyed by Sahi Ram before sale. The plaintiffs and others never showed any interest in the land nor they had any. The deceased Sahi Ram purchased this land from his independent sources and enjoyed it as his self-acquired property. The plaintiffs or the other claimants did not afford or provide any nucleus to the price of the property purchased nor they were capable of providing it. The grounds challenging the sale were also denied. It was pleaded that the sale was effected for legal necessity. There was no interest of the Joint Hindu Family in the land nor the Joint Hindu Family did exist. A sum of Rs. 2000/- was paid through an agreement dated September 12, 1964 in the presence of the witnesses to Sahi Ram by the defendants and a sum of Rs. 30,500/- was paid before the Sub-Registrar, Amloh at the time of attestation of the sale deed on December 21, 1964. Sahi Ram admitted the payment of Rs. 2000/- made to him before the Sub-Registrar, Amloh also. 30,500/- was paid before the Sub-Registrar, Amloh at the time of attestation of the sale deed on December 21, 1964. Sahi Ram admitted the payment of Rs. 2000/- made to him before the Sub-Registrar, Amloh also. Sahi Ram represented to the vendee- defendants that he required money for his business, trade and construction of his house and for welfare of the estate and the members of the family. It was also averred that the land in question was barani and Sahi Ram did not know agriculture well and as such the land did not give him good return. Sahi Ram was of the opinion to start some new business in the city, which, in his opinion, was more profitable and also wanted to purchase share in the brick kiln, thinking it to be an act of good management. 4. The pleadings of the parties gave rise to the following issues :- "1. Whether the suit is bad on account of non-joinder of necessary parties as alleged ? OPD 2. Whether the suit, as framed is not maintainable ? OPD 3. Whether the suit is properly valued for the purposes of Court fee and jurisdiction ? OPD 4. Relief." These issues were treated as preliminary and were decided vide order dated April, 22, 1974. Subsequently, on April 24, 1978, following issues were framed :- "1. Whether plaintiff No. 1 is the son of Sahi Ram and plaintiff No. 2 is the grandson of Sahi Ram ? OPP 2. Whether the plaintiffs constituted a Joint Hindu Family with Sahi Ram ? OPP 3. Whether the property in dispute is the coparcenery property and Joint Hindu Family property ? OPP 4. Whether the sale in dispute is for legal necessity and is an act of good management ? OPd 5. Whether the sale in dispute was invalid on account of fact that Sahi Ram had no power to sell the land and that he was not possessed of sound disposing mind at the time of the sale ? OPP 6. Whether Sahi Ram executed a valid will in favour of Durga Devi, if so, its effect ? OPD 7. Relief." After resultant trial, the trial Court dismissed the suit. Whereas, findings on Issue No. 1 were returned in favour of the plaintiffs, those on Issues 2, 3 and 5 were returned against them. OPP 6. Whether Sahi Ram executed a valid will in favour of Durga Devi, if so, its effect ? OPD 7. Relief." After resultant trial, the trial Court dismissed the suit. Whereas, findings on Issue No. 1 were returned in favour of the plaintiffs, those on Issues 2, 3 and 5 were returned against them. It was held that the plaintiffs did not constitute Joint Hindu Family with Sahi Ram nor the property in dispute was a co-parcenary property. It was further held that Sahi Ram was possessed of sound disposing mind and sale was valid. On Issue No. 4, although it was held that sale was not for legal necessity, yet it was held that it was an act of good management on the part of Sahi Ram. Issue No. 6 was decided against the plaintiffs. In the result, suit, as mentioned above, was dismissed. Constrained, plaintiffs carried an appeal, with the result, already indicated above. 5. It is significant to note that it is only on account of some variation of findings given under Issue No. 5 by the Appellate Court that the suit has been partly decreed. 6. After holding that Sahi Ram was of sound mind and could, thus, dispose of the property in dispute, the appellate Court further observed that insofar as competence of Sahi Ram to make alienation in question is concerned, it would appear as seen under Issue Nos. 2 and 3 that Chanan Ram had 1/4th share in the land. He separated in the year 1991 BK and his share in the land was defined. Onviously, Sahi Ram had no disposable interest in that property qua the share of Chanan Ram, now represented by Sukhdev, respondent No. 7 in the appeal and the LRs of Gian Chand, plaintiff-appellant, since deceased. The partition was not given effect to in the revenue record and the land continued to stand in the name of Sahi Ram. In fact, he had been dealing with the property as owner. From the perusal of Ex.P233 it would appear that Sahi Ram did not keep any interest in himself in the land in question. He conferred 1/4th share each on his four sons in the land. Thus, Sita Ram plaintiff had also 1/4th share in the land but it was never the case of the plaintiffs that Sahi Ram had no interest whatsoever in the land. He conferred 1/4th share each on his four sons in the land. Thus, Sita Ram plaintiff had also 1/4th share in the land but it was never the case of the plaintiffs that Sahi Ram had no interest whatsoever in the land. According to the assertions made in the plaint, the plaintiffs had 2/3rd share in the land. The plaintiffs claimed that much share in the land, perhaps on the ground that Chanan Ram, Sita Ram and Sahi Ram had 1/3rd share each. Kulwant Rai and Jaswant Rai had not been impleaded as defendants originally. It appears to me that after the separation of Chanan Ram in the year 1991 BK, the land was treated as joint of 4 brothers with Sahi Ram and that is why the plaintiffs did not allege that Sahi Ram had no interest whatsoever in the land or that Sita Ram plaintiff had 1/4th share in the land or that Gian Chand and Sukhdev plaintiff put together had 1/4th share in the land. I would, therefore, take it that Sahi Ram, Sita Ram, Kulwant Rai and Jaswant Rai and the branch of Chanan Ram deceased held 1/5th share each in the land as tenant in common. (emphasis supplied). It has already been determined under issues 2 and 3 that the land had been purchased with the nucleus provided by the Joint Hindu Family but the property ceased to be coparcenary property in the year 1991 BK. Sita Ram, therefore, had 1/5th share in the land whereas Gian Chand and Sukhdev had 1/10th share each in the said land. In other words Sahi Ram was not competent to effect the alienation of their share amounting to 2/5th in the entire land. The finding given by the learned Court below to the effect that he was competent to alienate the entire land does not appear to be well based after he had already returned a finding that the property ceased to be coparcenary property as a result of the partition effected in 1991 BK. There is no warrant for the conclusion that after that partition Sahi Ram became the sole owner of the property. The finding given by the learned Court below in this behalf is reversed and it is held that Sahi Ram was not competent to alienate the shares of Sita Ram, Gian Chand and Sukhdev plaintiffs. Rather, sale to that effect is void". 7. The finding given by the learned Court below in this behalf is reversed and it is held that Sahi Ram was not competent to alienate the shares of Sita Ram, Gian Chand and Sukhdev plaintiffs. Rather, sale to that effect is void". 7. Learned counsel for the defendants has serious objection to the findings returned by the first appellate Court, reproduced above. He contends that no case as such was pleaded in the plaint and that being so, no amount of evidence, sans pleadings, could at all be looked into. I find considerable merit in the contention of the learned counsel, noted above. To reiterate, the pleadings of the plaintiffs reveal that they styled themselves to be constituting a Joint Hindu Family along with L. Sahi Ram. It was further averred that the Joint Hindu Family carried on the business of money lending and for that purpose they took lands on mortgage from other villagers. The Joint Hindu Family had advanced huge amount as loan to various persons and it owned extensive properties which were ancestral and coparcenary. Sahi Ram also purchased agricultural land with the help of nucleus of the Joint Hindu Family and its income and cash. That property was also thrown into the common pool. The property in dispute was also ancestral and coparcenery property. The sale, as mentioned above, was challenged on three grounds, which has been reproduced above. If one is to go by the pleadings as made in the plaint, it would transpire that the plaintiffs along with their brothers or uncles, as the case may be, were stated to be constituting a Joint Hindu Family with Sahi Ram and it is the business of this family which had augmented enough income to purchase various properties, inclusive of the property in dispute, measuring 65 bighas. If at all, a finding with regard to Joint Hindu Family and Joint Hindu Family property had to be returned, it could be based only on the pleadings, that have been reflected above. It was never the case of the plaintiffs that Chanan Ram had 1/4th share in the land and that he separated in 1991 BK. The correctness of the findings, on the basis of evidence that has been led apart, the Court is of the view that such a finding, without there being pleadings, could not be given. It was never the case of the plaintiffs that Chanan Ram had 1/4th share in the land and that he separated in 1991 BK. The correctness of the findings, on the basis of evidence that has been led apart, the Court is of the view that such a finding, without there being pleadings, could not be given. Surely, on lack of pleadings, defendants were deprived of their rights to contest the same on whatever grounds that might be available to them. The Court is, prima facie, doubting even the finding to the effect aforesaid primarily on the ground that immediately after recording that Chanan Ram had 1/4th share in the land after he separated in the year 1991 BK and his share had been defined, it has been observed that the partition was not given effect to in the revenue record and the land continued to stand in the name of Sahi Ram. It is strange, as to how, after partition wherein share of Chanan Ram might have been defined to be 1/4th, property still continued to be shown joint till the date of sale, in the name of Sahi Ram. It has further been observed that Sahi Ram was dealing with the property as an owner. If that be so, there was no question of Chanan Ram having 1/4th share on his separation from the so-called Joint Hindu Family. There appears to be no basis whatsoever for returning a finding that Sahi Ram did not keep any interest in the land in question and further that he conferred 1/4th share each on his four sons in the land. It would be significant to mention here that the learned Appellate Court was itself in doubt when it observed that the plaintiffs claimed that much share in the land, perhaps on the ground that Chanan Ram, Sita Ram and Sahi Ram had 1/3rd share each and further when it observed that it appears (emphasis supplied) to me that after the separation of Chanan Ram in the year 1991 BK, the land was treated as joint of four brothers with Sahi Ram and that is why the plaintiffs did not allege that Sahi Ram had no interest whatsoever in the land or that Sita Ram plaintiff had 1/4th share in the land. All the findings, as mentioned above, are conjectural in nature. All the findings, as mentioned above, are conjectural in nature. Be that as it may, these are not in tune with the pleadings in the plaint and that, in itself, is enough to set aside the findings, referred to above. Mr. Bhandari, learned counsel for the plaintiffs could not raise any meaningful argument that might detract from the contention raised by the learned counsel for the defendants. 8. Before I might part with this order, I would like to observe that findings on other issues have been returned in favour of the defendants. A categoric finding has been returned that Sahi Ram had sound disposing mind and that the sale in this case was made on the consideration, so specifically mentioned in the sale deed and further that it was an act of good management on the part of Sahi Ram to alienate the land. 9. In view of what has been said above, the impugned judgment and decree passed by the first appellate Court, partly allowing the suit of the plaintiffs and to the extent and manner, as fully detailed above, is set aside and the one passed by the trial Court is restored. In view of frequent change of fortunes of the parties in different Courts, they are left to bear their onw costs. Nothing at all has been urged in support of the cross-objections filed by the plaintiffs. The same are, therefore, rejected. Order accordingly.