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2006 DIGILAW 3312 (PNJ)

Gurdev Kaur v. Bhagwan Singh

2006-08-17

MAHESH GROVER

body2006
JUDGMENT MAHESH GROVER, J. 1. Briefly stated the facts of the case are that the plaintiff appellant filed a suit for declaration and permanent injunction. It was averred that Arjan Singh son of Bachna was the original owner of the suit land measuring 141 kanals 3 marlas, who died leaving behind two sons, namely, Bhagwan Singh (present respondent no.1) and Ram Singh (present respondent no.5) and four daughters, namely, Gurdev Kaur (present appellant), Bhagwan Kaur, Dalip Kaur and Surjit Kaur (present respondent nos. 2 to 4). During his life time, Arjan Singh suffered a decree on 26.4.1973 in civil suit no.40 of 14.3.1973 in favour of his sons Bhagwan Singh to the extent of 2/5th share and Ram Singh to the extent of 1/5th share and daughter-in-law Kartaro wife of Ram Singh to the extent of 1/5th share. Later on, after his death, the mutation of inheritance was sanctioned regarding the entire suit land in favour of all the sons and daughters and all of them were declared to be owner in possession of the suit land to the extent of 1/6th share each. Bhagwan Singh is alleged to have filed civil suit no.310 of 1.6.1988 against his sisters, Bhagwan Kaur and Gurdev Kaur. Later on, the suit was amended and the name of Gurdev Kaur was deleted and the claim was made only qua the share of Bhagwan Kaur. This suit was decreed on 19.12.1988 and Bhagwan Singh was declared owner of 1/2 share of the suit land. The appellant claimed that after the sanction of mutation, the suit land was being jointly cultivated by all the parties and she was entitled to her 1/6th share and that she had not suffered any decree on 19.12.1988 in civil suit no.310 of 1.6.1988. 2. The suit was contested only by Bhagwan Singh. In his defence, Bhagwan Singh denied the allegations as contained in the plaint and reiterated that he was owner of 1/2 share of the suit land and also set up a counter-claim to explain the circumstances under which 1/2 share had devolved upon him. 2. The suit was contested only by Bhagwan Singh. In his defence, Bhagwan Singh denied the allegations as contained in the plaint and reiterated that he was owner of 1/2 share of the suit land and also set up a counter-claim to explain the circumstances under which 1/2 share had devolved upon him. In the written statement, it was contended that the suit land originally belonged to Bachna, the grand-father of the parties from whom it was inherited by Arjan Singh and that the suit land was ancestral coparcenary property of the Joint Hindu Family comprising of Arjan Singh and his two sons, i.e., Bhagwan Singhand Ram Singh. The daughters were not the members of Joint Hindu Family and, therefore, they had no claim to the ancestral property. On 26.4.1973, Arjan Singh had suffered a decree in favour of both the sons and wife of one of the sons to the extent of 1/5th and retained 1/5th share with him. By way of the said decree, Bhagwan Singh had become owner of the suit property to the extent of 2/5th share and on the passing of the later decree, he became owner to the extent of1/2 share and that the appellant had no concern with the suit land. 3. The rest of the defendants in the suit, namely, Dalip Kaur and Surjit Kaur and Ram Singh supported the case of Bhagwan Singh, while Bhagwan Kaur, who had suffered decree dated 19.12.1988 did not contest the suit. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is the owner in possession as a cosharer to the extent of 1/6th share, as alleged in the plaint?OPP 2. Whether the judgment and decree dated 19.12.1988 is null and void and illegal?OPP 3. Whether the plaintiff is entitled to injunction prayed for?OPP 4. Whether the suit is not maintainable?OPD 5. Whether the plaintiff has no locus standi and cause of action to file the suit?OPD 6. Whether the property in the hands of Arjan Singh was the ancestral coparcenary property of the Joint Hindu Family?OPD 7. Whether the parties to the suit was governed by Hindu Law?OPD 8. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?OPD 8-A. Whether defendant no.1 is owner in possession of suit land to the extent of 1/2 share as alleged?OPD 9. Relief. 5. Whether the parties to the suit was governed by Hindu Law?OPD 8. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?OPD 8-A. Whether defendant no.1 is owner in possession of suit land to the extent of 1/2 share as alleged?OPD 9. Relief. 5. After perusing the evidence on record, the trial Court went on to partly decree the suit of the appellant and held that she was the owner in possession of the suit land to the extent of 1/30th share. Decree dated 19.12.1988 was held not binding upon the appellant and respondent no.1 was restrained from alienating 1/30th share of the suit property. The counterclaim filed by respondent no.1 was partly allowed to the effect that he was held to be owner in possession of the suit land to the extent of 14/30th share. 6. Dis-satisfied with the judgment and decree of the trial Court, the appellant preferred an appeal and the lower Appellate Court affirmed the findings recorded by the trial Court on all the issues and accordingly, dismissed the appeal. This has resulted in the Regular Second Appeal having been filed by the appellant. 7. I have heard learned counsel for the parties and perused the record. 8. Shri Arihant Jain, learned counsel for the appellant contended that both the Courts have gone wrong in holding that decree dated 26.4.1973 had been validly suffered by Arjan Singh vide which he is alleged to have transferred 2/5th share in the suit land to Bhagwan Singh. He urged that this decree had never seen the light of the day and for the first time, it was produced as Exhibit D1 in the present proceedings and had the decree been passed in the year 1973, then there was no question of sanctioning of the mutation after the death of Arjan Singh in favour of all his legal heirs. Shri Jain argued that in view of the above facts, an inference should be drawn that decree Exhibit D1 was never acted upon. He contended that even after the sanctioning of the mutation, no attempt was made to get it rectified and this should be taken as an indicative of the fact that decree dated 26.4.1973 was not a valid decree. 9. He contended that even after the sanctioning of the mutation, no attempt was made to get it rectified and this should be taken as an indicative of the fact that decree dated 26.4.1973 was not a valid decree. 9. On the other hand, Shri Arvind Bansal, learned counsel for the respondents contended that decree dated 26.4.1973 had been suffered by Arjan Singh vide which 2/5th share in the suit land had been given to respondent no. 1-Bhagwan Singh and 1/5th share each was given to Ram Singh and his wife Kartaro, whereas remaining 1/5th share remained with Arjan Singh himself. He further contended that after the death of Arjan Singh, the succession could have open only qua 1/5th share of the suit property and not qua the entire suit land as 4/5th share had already been settled by virtue of decree dated 26.4.1973. Shri Bansal submitted that both the Courts have recorded a concurrent finding to this effect and there was no infirmity in the same. 10. Having considered the respective contentions of the learned counsel, I am of the opinion that the appeal does not deserve to succeed. The existence of decree dated 26.4.1973 has not been denied. The appellant did not lay any challenge to the said decree even though it was pleaded by her that it was passed on 26.4.1973 but the same was not binding upon her. The only case that was set up by the appellant was that the decree had never been acted upon which is reflected from the fact that the mutation was sanctioned qua the entire land after the death of Arjan Singh. I am afraid, this contention cannot be accepted. A decree had been suffered by late Arjan Singh in favour of his sons and daughter- in-law which is a valid decree and unless it is set aside, it will govern the rights of the parties to the decree. At the time of his death, Arjan Singh was only owner in possession of his 1/5th share. Consequently, after his death, the succession regarding 1/5th share owned and possessed by him would open qua all his surviving legal heirs. The appellant would, therefore, be entitled to 1/30th share of the suit property left behind by Arjan Siongh. 11. There is no infirmity in the findings recorded by the Courts below. Consequently, after his death, the succession regarding 1/5th share owned and possessed by him would open qua all his surviving legal heirs. The appellant would, therefore, be entitled to 1/30th share of the suit property left behind by Arjan Siongh. 11. There is no infirmity in the findings recorded by the Courts below. Both the Courts have held that the appellant would be entitled to1/30th share of the suit property and that the earlier decree dated 26.4.1973 which had determined the rights of the parties to it cannot be interfered with for the simple reason that there was no challenge to the same. 12. For the reasons recorded above, there is no merit in the appeal which is dismissed.