Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 324 (PNJ)

Tilak Raj v. Baikunthi Devi

2007-02-28

S.D.ANAND

body2007
ORDER S.D. Anand, J 1. The orders in Regular Second Appeal No. 2351 of 1983 were pronounced on 18.08.2006. The records requisitioned from the Trial Court and the 1st Appellate Court have already been returned to the District Judge. 2. The present application has been filed by the appellant for review of the judgment dated 18.08.2006. 3. In the course thereof, the plea raised is that certain judgments cited at the time of arguments have not been taken into consideration. The other plea is that the date on which the property of Data Ram @ Datu reverted to his wife has been incorrectly recorded inasmuch as the mutation, on the basis of reversion of the property, had been entered on 28.05.1969 but sanctioned on 19.09.1969. The plea raised thereby is that the property would be deemed to have legally reverted to the wife of Data Ram on the date the mutation in the context was sanctioned. 4. Insofar as the first raised plea is concerned, it is factually incorrect. Whatever judicial pronouncements were cited by the parties were noticed and dealt with. That part of the plea shall stand negatived at the very outset. 5. I have heard the learned counsel for the parties. 6. For enabling appropriate appreciation of the other part of the controversy, the following facts are extracted from the judgment dated 18.08.2006 passed by this Court:- “3. One Thakru, the common ancestor of the parties, had two sons, namely Mange Ram and Tilak Raj. The former was father of plaintiff-appellant Tilak Raj. Data Ram @ Datu, husband of Mst.Baikunthi was the other son. The property in suit was owned by and was in the possession of Data Ram who died on 23.2.1968, leaving his wife Mst.Baikunthi and his mother Mst.Radhi as natural and legal heirs. Mst.Radhi died on 13.9.1968. Before her death, she executed a registered will dated 30.4.1968 in favour of her son i.e. plaintiff-appellant. However, the land left by Data Ram was mutated in favour of Baikunthi on the basis of will dated 16.1.1968 which she produced before the Revenue Authorities. In order to establish his claim qua half share of the property willed in his favour by his mother Mst.Radhi, the plaintiff-appellant filed a civil suit on 28.8.1969. In that civil suit, Baikunthi set up a will purporting to have been executed by her husband in her favour on 16.1.1968. In order to establish his claim qua half share of the property willed in his favour by his mother Mst.Radhi, the plaintiff-appellant filed a civil suit on 28.8.1969. In that civil suit, Baikunthi set up a will purporting to have been executed by her husband in her favour on 16.1.1968. The suit was decreed vide judgment and decree dated 5.2.1976. The plea of plaintiff-appellant Tilak Raj, based upon registered will dated 30.4.1968, was upheld. The plea raised by Baikunthi on the basis of the will dated 16.1.1968 was negatived. 7. When execution was taken out by the plaintiff-appellant, it was found that no part of the decreed land bore khasra No.25R/52 and that the correct khasra number was 26R/52. On that account, the possession of a part of the decreed land could not be delivered to the plaintiff-appellant. 8. Apart therefrom, certain land owned by Data Ram @ Datu had been acquired by the Fertilizer Corporation of India (for short to be referred as “FCI”) during his life time. After his demise, a part of that land was re-conveyed in view of the fact that the beneficiary under the acquisition i.e. FCI, found that a part of the acquired land was surplus. The plea, raised in the context, was that he had paid his share of the re-purchase amount and, thus, he had become owner of the re-purchased/reconveyed land to the extent of half share. 9. The plaintiff-appellant, thereafter, filed the present suit for a decree for declaration that he is owner in possession of the two parcels of the land aforesaid, as a co-sharer. Also sought, as a consequential relief, was a decree for the possession of that land. 10. Defendant-respondent, Mst.Baikunthi pleaded that the suit was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as “the Code”). It was further pleaded that the plaintiff-appellant had no title whatsoever qua the property which she had re-purchased from the FCI. The plea raised thereby was that it was not a case of reconveyance of the property, but a case of purchase of the property by Mst.Baikunthi when it was offered to her by the FCI. Further averment, in the context, was that it was she only who had paid the total re-purchase price to FCI and no part of it had been paid by the plaintiff-appellant. 11. Further averment, in the context, was that it was she only who had paid the total re-purchase price to FCI and no part of it had been paid by the plaintiff-appellant. 11. The learned Trial Court recorded a finding that the bar of Order 2 Rule 2 of the Code was not attracted to the case inasmuch as the only remedy left to the appellant (in respect of the mis-described part of the decreed land) was the filing of a fresh civil suit. It was, otherwise, recorded that the plaintiff-appellant had not been able to prove having contributed his share of the re-purchased land. It was further held that the transaction regarding the transfer of land by the FCI to Baikunthi was not a case of re-conveyance but a case of repurchase. 12. Though the learned First Appellate Court upheld the finding recorded by the Trial Judge to the effect that the plaintiff-appellant had not been able to prove having contributed the re-purchase amount, it reversed the finding that the suit was barred by Order 2 Rule 2 of the Code, by holding that the proper remedy available to the plaintiff-appellant was to resort to the provisions of Section 152 of the Code and a fresh suit (qua the mis-described part of the property) was not competent.” 13. There cannot be any manner of controversy with the fact that a review plea would be competent only in the contingencies indicated in Order 47 Rule 1 C.P.C. In the present case, the plea raised on behalf of the appellant is that the bar of Order 2 Rule 2 of the Code of Civil Procedure would go if it is held that the property released by the Food Corporation of India had not reverted to the estate of Data Ram by the time the previous suit came to be filed. The plea in the context is that the land would be deemed to have reverted to the estate of Data Ram on 19.09.1969 i.e. the date on which the revenue authorities sanctioned the mutation in that behalf. 14. The plea raised is devoid of force. As noticed by the learned 1st Appellate Court in para no.3 of the judgment dated 07.06.1983, the payment in the relevant behalf was made by Mst. Baikunthi Devi on 12.02.1969. The mutation came to be entered on 28.05.1969 and it was sanctioned on 19.09.1969. 14. The plea raised is devoid of force. As noticed by the learned 1st Appellate Court in para no.3 of the judgment dated 07.06.1983, the payment in the relevant behalf was made by Mst. Baikunthi Devi on 12.02.1969. The mutation came to be entered on 28.05.1969 and it was sanctioned on 19.09.1969. Nonetheless, it would appear to be an uncontroverted fact the payment of the amount aforementioned (Rs.4047.60) was made by Mst. Baikunthi Devi on 12.02.1969. As noticed by this Court in judgment dated 18.08.2006 the fact whether it was a case of re-conveyance or re-purchase of property is irrelevant to the controversy. There is no warrant for the proposition that the property would be deemed to have actually reverted on the date the mutation was sanctioned. The change of title was complete the moment the relevant amount got deposited on 12.02.1969. The previous suit was filed on 28.08.1969. 15. There is no error apparent on the face of the record which, if taken notice of, would affect the fate of the Regular Second Appeal. Though this Court was not compulsively required to deal with the above factual contention, it was thought desirable to notice the plea raised to prove the falsity thereof in the facts and circumstances of the case. The re-appraisal of evidence would otherwise obviously be foreign in the matter of disposal of a review application. The only object was to indicate the incorrect factual premise on which the application is based. 16. The review plea is completely devoid of merit and is dismissed. Appeal dismissed.