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2002 DIGILAW 1326 (PNJ)

Kata Singh v. Jaswant Singh

2002-11-29

R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. Unsuccessful plaintiff Kata Singh has filed the present regular second appeal and it has been directed against the judgment and decree dated 15.10.1979 passed by Additional District Judge, Sirsa who allowed the appeal of the defendants by setting aside the judgment and decree dated 27.4.1977 passed by Sub Judge, 1st Class, Dabwali who decreed the suit of the plaintiff-appellants for possession of the land measuring 9 kanals as detailed in the heading of the plaint. 2. The brief facts of the case are that Kata Singh appellant filed a suit for possession of the agricultural land measuring 9 kanals comprised in Killa No. 155, Khasra No.24 (7-11), 25(1-9), Khewat No.454, Khatoni No.663 as per jamabandi for the year 1969-70 on the basis of the title or in the alternative the land measuring 9 kanals comprised in Killa No.155/15(6-13) and 17(2-7), situated in Dabwali, District Sirsa. There was some litigation regarding possession of the land between the parties and earlier a decree for possession was passed in favour of the plaintiff by Sub Judge in the year 1969 according to which the plaintiff was entitled to take possession of the land measuring 9 kanals, comprised in Rect. No. 155, Khasra Nos. 16(6-13) and 17(2-7) and that decree was passed in Civil Suit No.275.The plaintiff filed execution proceedings and in the opinion of the defendants there was some misunderstanding regarding that land regarding which the plaintiff obtained the decree in a wrongful manner. In fact, the plaintiff was entitled to the price of the land measuring 9 kanals in lieu of the old khasra number but by mistake of the consolidation department the tuck of the plaintiff was not separately demarcated and it was merged in the tuck of the defendants and the defendants did not want to part with the land comprised in Khasra Nos. 16 and 17 of Rect. No.155. The case set up by the plaintiff further is that with the intervention of the panchayat the defendants gave an undertaking to give 9 kanals of land comprised in Khasra No.24(7-11) and 25(1-9) instead of Killa Nos.16 and 17, referred to above as per compromise Ex.P1 dated 4.10.1969 which was executed between the parties, so, much so, one Harbans Singh stood surety on behalf of the defendants. On the basis of said compromise the execution application which was filed by the plaintiff with the executing court was dismissed as withdrawn. In short, the case set up by the plaintiff is that as the undertaking was given by the defendants that they would give the possession of 9 kanals of land comprised in Khasra Nos.24 and 25, but they backed out and hence the present suit. 3. The suit was contested by the defendants and it was pleaded that the plaintiff earlier filed an execution application for possession of land comprised in Khasra Nos.16 and 17 and the same was withdrawn by the plaintiff as he had alleged that he had taken a wrong decree whereas he was entitled to the land comprised in Rect. No. 131 Killa No.9. So, the execution application was dismissed. It was pleaded that the plaintiff was barred from filing the present suit as he had withdrawn the execution application without the permission of the court and that the suit was barred by the principle of resjudi-cata and the plaintiff was estopped from filing the present suit by his own act and conduct. He had waived his right and the suit of the plaintiff was not legally maintainable in the present form. With this defence the defendants prayed for the dismissal of the suit. 4. From the pleadings of the parties, the learned trial Court framed the following is-sues;- "1. Whether the defendants had executed writing to the effect that they would give Killa Nos. 24, 25 of Sq. No.155 instead of Killa Nos.16, 17 of Sq.No.155? OPP 2. If issue No. 1 is not proved whether the plaintiff is entitled to recover possession of these Killa numbers from defendants? OPD 3. If issue No. 1 is not proved whether the plaintiff is entitled to recover possession of those Killa numbers from defendants? OPD 4. Whether the suit is within limitation? OPP 5. Whether the plaintiff is debarred from filing the present suit by his own act and conduct ? OPD 6. Whether the plaintiff has waived his rights in respect of the suit land? OPP 7. Whether the suit is barred because the plaintiff had withdrawn execution application without the permission of court? OPD 8. Whether the suit is barred by the principle of res judicata as alleged in para No.3 of the additional objections in written statement? OPD 9. Whether the plaintiff has waived his rights in respect of the suit land? OPP 7. Whether the suit is barred because the plaintiff had withdrawn execution application without the permission of court? OPD 8. Whether the suit is barred by the principle of res judicata as alleged in para No.3 of the additional objections in written statement? OPD 9. Whether the defendants have become owners by way of adverse possession? OPD 10. Whether the suit filed is frivolous and the defendants are therefore entitled to special costs under Section 35-A of CPC? If so to what amount ?OPD. 11. Relief. The parties led oral and documentary evidence in support of their respective cases and on the conclusion of the trial the learned trial Court vide judgment and decree dated 27.4.1977 decreed the suit of the plaintiff. 5. Not satisfied with the judgment and decree of the learned trial court the defendants fifed an appeal before the Court of Addl. District Judge, Sirsa, who allowed the appeal and dismissed the suit of the plaintiff for the reasons given hi the impugned judgment and aggrieved by the judgment and decree passed by the first Appellant Court the present appeal by the plaintiff-appellant. 6. I have heard Mr. G.S. Gandhi, Advocate on behalf of the appellant, Mr. J.L. Malhotra, Advocate on behalf of the respondent and with their assistance have gone through the records of the case. 7. The learned counsel for the appellant has vehemently submitted that earlier a decree of land measuring 9 kanals was passed in favour of the plaintiff in Civil Suit No.275 with regard to Khasra Nos.16 and 17. The plaintiff filed an application for the execution of said decree and during the execution proceedings the defendants entered into a compromise that they would give 9 kanals of land comprised in Khasra Nos.24 and 25 to the plaintiff. They have backed out as per the compromise dated 4.10.1969. Therefore, the plaintiff has the cause of action for the purpose of filing of the present suit. If the suit of the plaintiff for possession of the land measuring 9 kanals comprised in Khasra Nos.24 and 25, referred to above, is not decreed for any reason by the Court the plaintiff is entitled to the possession of the land measuring 9 kanals comprised in Khasra Nos.16 and 17 of Rect. No.155. 8. If the suit of the plaintiff for possession of the land measuring 9 kanals comprised in Khasra Nos.24 and 25, referred to above, is not decreed for any reason by the Court the plaintiff is entitled to the possession of the land measuring 9 kanals comprised in Khasra Nos.16 and 17 of Rect. No.155. 8. On the contrary, the learned counsel for the respondents submitted that the plaintiff filed an execution application with regard to Khasra Nos.16 and 17. The said application was dismissed as withdrawn because the plaintiff was well aware that he has obtained a wrong decree with regard to Khasra Nos.16 and 17. He was to get the possession of the land of Rect. No.131. Killa No.9 regarding which the present suit does not pertain and, therefore, the first Appellant Court has rightly dismissed the suit of the plaintiff. It was also argued by the learned counsel appearing on behalf of the respondents that the agreement Ex.P1, which has been relied upon by the plaintiff is not enforceable in law on account of ambiguity and uncertainty. 9. After considering the rival contentions of the parities, I am of the considered opinion that this appeal deserves to be dismissed. The plaintiff in the present case is making the basis of the suit the agreement Ex.Pl which was executed between the parties on 4.10.1969 at Mandi Dabwali. The terms of the agreement run as follows;- "That a decree for the possession of 9 kanals of land comprising in Square/Killa No.155/16(6-13) and 17(2-7), situated at village Dabwali, has been passed by the Court of Sub Judge, Mandi Dabwali, in Case No.275 against certain defendants including ourselves. This decree has been passed in favour of Kata Singh son of Mehnga Singh and the execution proceedings were started and is fixed for today for which we had filed an objection and in consideration of the above referred matter and to avoid further litigation we under take and agree as under:- 1. This decree has been passed in favour of Kata Singh son of Mehnga Singh and the execution proceedings were started and is fixed for today for which we had filed an objection and in consideration of the above referred matter and to avoid further litigation we under take and agree as under:- 1. That since a decree has been passed for possession of wrong Killa and Kata Singh is entitled to take possession but with mutual agreement we have taken the responsibility to give possession to Kata Singh of certain other Killa of equal value and area and for that any expenses incurred by Kata Singh will be borne by us and in case he does not succeed legally to obtain that other area we are responsible and undertake to give the same land or any other land according to his choice. Sh. Harbans Singh son of Sh. Sher Singh, who is also one of the defendants in the case, stands surety for the same." 10 The readings of the above would sow that earlier a decree for possession of 9 kanals of land was passed in favour of the plaintiff with respect to Khasra Nos.16 and 17 in Civil Suit No.275. The said decree was not complied with as a result of which the plaintiff filed execution application and during the course of execution proceedings an agreement was arrived at by mutual consent that possession will be given of some land to the plaintiff from certain other killa of the equal value and area and that any expenses incurred by Kata Singh will be borne by the signatories of the agreement Ex.P.1. In case the plaintiff Kata Singh does not succeed legally to obtain the other area the signatories of the agreement will be responsible for the same. There is no mention with regard to Khasra No.24 and 25 of Rect. No.155 nor there is any mention that from Rect. No.155 any land measuring 9 kanals shall be transferred in favour of the plaintiff. Section 29 of the Indian Contract Act lays down that all agreements, the meaning of which is not certain, or capable of being made certain, are void and illustration (a) 6f the above section is very relevant for my purpose. The illustration runs as follows;- "A agrees to sell to B a hundred tons of oil". Section 29 of the Indian Contract Act lays down that all agreements, the meaning of which is not certain, or capable of being made certain, are void and illustration (a) 6f the above section is very relevant for my purpose. The illustration runs as follows;- "A agrees to sell to B a hundred tons of oil". There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty." There is not an iota of mention in agreement Ex.Pl that the defendants would transfer 9 kanals of land comprised in Khasra Nos.24 and 25 of Rect. No.155. The other land of equal value and area has also not been defined or identified in the agreement Ex.P1. Therefore, the very basis of the suit which is incapable of giving meaning goes into wind. 11. With regard to Khasra Nos.16 and 17 it is the case of the plaintiff itself that he filed the execution and that was dismissed as withdrawn. The order has become final. Even otherwise, if it is assumed for the sake of argument that the cause of action to the plaintiff still survives to get possession of Khasra Nos.16 and 17 of Rect. No.155, still his remedy lies in the filing of the execution on the plea that his earlier execution remained unsatisfied, but his present suit for possession of the land comprised in Khasra Nos.24 and 25 of Khasra No.155 or in the alternative for possession of the land comprised in Khasra Nos.16 and 17 of Rect. No.155 is not maintainable. The agreement Ex.Pl is not enforceable in the eyes of law. It is the case of the plaintiff that he earlier obtained a decree of 9 kanals of land in Civil Suit No.275/69. That was an ex parte decree which has already been set aside vide order dated 7.8.1970 and subsequently the suit of the plaintiff was dismissed on 28.8.1970 in default for prosecution. The agreement Ex.Pl was on account of that decree. When the decree goes how the agreement Ex.Pl can survive and even the agreement Ex.Pl will be considered without consideration and as per Section 25 all the agreements which are without consideration are totally bad. When the whole basis of the agreement i.e. the decree passed in Civil Suit No.275/69 goes how the cause of action survives to the plaintiff. When the decree goes how the agreement Ex.Pl can survive and even the agreement Ex.Pl will be considered without consideration and as per Section 25 all the agreements which are without consideration are totally bad. When the whole basis of the agreement i.e. the decree passed in Civil Suit No.275/69 goes how the cause of action survives to the plaintiff. So much so in the execution proceedings the counsel appearing on behalf of Kata Singh plaintiff made a statement that the decree obtained by the plaintiff was of the wrong numbers and in fact he was entitled to the decree for Rect.No.131 of Killa No.9. Therefore, if the plaintiff had any cause of action he had to file a suit for possession of Khasra No.9 of Rect No. 131, but his suit with regard to Khasra Nos.24 and 25 or in the alternative for khasra Nos.16 and 17 of Rect. No.155 was totally misconceived. During the trial PW1 Harbans Singh, who is the attesting witness of agreement Ex.P1, made a statement that decree was an award according to which in lieu of Killa Nos.16 and 17 the plaintiff was entitled to the land of Killa Nos.24 and 25. He stated that this award was in writing and the parties had signed it. He further stated that the award was separate from the agreement Ex.P1. In these circumstances when after the agreement Ex.Pl an award has also been obtained by the plaintiff on his favour, then his remedy lies in the execution of the award under the Indian Arbitration Act and not by the present suit. Be that as it may, I am of the opinion that the agreement Ex.Pl is not enforceable and even if it is assumed for the sake of argument that it is proved on the record, still the defendants never agreed that they would part 9 kanals of land out of Khasra Nos.24 and 25. Therefore, I affirm the findings of the learned trial Court on Issue Nos.1 to 3. 12. No other point was urged before me. Therefore, I am of the considered opinion that this appeal is totally devoid of any merit and the same is hereby dismissed leaving the parties to bear their own costs.