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2009 DIGILAW 1392 (PNJ)

Ram Chander Etc. v. Jita

2009-08-12

SABINA

body2009
Judgment Sabina, J. 1. Plaintiffs had filed a suit for declaration with consequential relief of permanent injunction that they were absolute owners in possession of the house, plot and site of shop described in the head note of the plaint. It was further prayed that the judgment and decree passed in Civil Suit No. 309/1 of 1986 dated 11.5.1991 and maintained an appeal by the Additional District Judge, Rohtak on 4.9.1992 were illegal null and void. The suit of the plaintiffs was dismissed by the Additional Civil Judge (Senior Division) Rohtak vide judgment and decree dated 19.8.2004. The appeal filed by plaintiffs was dismissed by the Additional District Judge, Rohtak vide judgment and decree dated 8.12.2005. Hence, the present appeal. 2. The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under :- "Case of the plaintiffs/appellants (here-in-after called the plaintiff) as emerging out from their plaint is that plaintiffs and defendant No. 4 Jaipal are the sons of defendant no. 3. They were members of Joint Hindu Family uptill 1970. A residential house, a gher/plot and site for shop, detailed and described in para no. 1 of the plaint and shown by alphabets ABCD, EFGH, and IJKL, respectively and shown in red colour in the site plan, attached with the plaint and situated in village Chamariyan (here-in-after called the property in dispute) were initially the part of agricultural land bearing Khewat No. 246/233, Khatoni No. 387, Rect. no. 32 Killa NO. 19/2 (6-12), 20/1 (2-12), total measuring 9 Kanals 4 Marlas. It was owned and possessed by Prabhu and Randhir etc. It was taken in exchange by defendant no. 2, defendant no. 3 and one Chhailu, from Prabhu and Randhir etc. vide Exchange Deed dated 7.4.1961. In lieu of the land in dispute, defendant no. 2 and said Chhailu gave two houses plots comprised in Khasra No. 27//15/11 & 27/15/12 to Parbhu and Randhir etc. Likewise defendant no. 3 gave one residential house measuring 46 Sq. yards and plot comprised in Khasra No. 27/15/10 measuring 0-8 Marlas to Prabhu and Randhir etc. in that exchange. The parties to the exchange took the possession of their respective exchanged properties. On the basis of the exchange, Mutation was sanctioned on 29.1.1962. In this way, defendant no. Likewise defendant no. 3 gave one residential house measuring 46 Sq. yards and plot comprised in Khasra No. 27/15/10 measuring 0-8 Marlas to Prabhu and Randhir etc. in that exchange. The parties to the exchange took the possession of their respective exchanged properties. On the basis of the exchange, Mutation was sanctioned on 29.1.1962. In this way, defendant no. 2 defendant No. 3 and said Chhailu had become owner-in possession in equal shares of the property in dispute. Thereafter, the joint properties of defendants no. 2, defendant No. 3 and said Chhailu were partitioned through an oral partition. The property in dispute fell to the share of defendant no. 3 whereas the other properties fell to the shares of defendant no. 2 and said Chhailu. The parties to the partition took possession of the properties which had fallen to their respective shares and became owner in possession of the same as reflected in the Jambandi for the year 1987-88. In this way, the plaintiffs/defendants No. 3 and 4 being the members of the Joint Hindu Family became co-sharers in possession of the property in dispute. In the year 1970 a family settlement took place, herein the properties of Joint Hindu Family, constituted by the plaintiffs and defendants no. 3 and 4 were partitioned. In that family settlement, the plaintiffs and defendant No.4 got the property in dispute and became absolute owners of the property in dispute. Defendant No.3 ceased to have any interest in the same. However, in the Revenue Record, the property in dispute continued to be standing in the name of Gugan, Thereafter, plaintiffs and defendant no. 4 had constructed residential house and a room on the plot and also installed a tubewell. The plaintiffs are residing in that residential house since the date of its construction. The plot is being used by them as Gher for tethering cattle and for the storing fodder etc. Defendant No.1 without any right or interest in the land in dispute comprised in Rect. No. 32 Killa NO. 19/2 (6- 12) and 20/1(2-12) i.e. the part of the land in dispute, filed a Civil Suit No. 309 of 1986 in civil Court of 18.10.1986 alleging therein that he was co- sharer with defendant no. 3 in that land in view of the exchange deed. He further pleaded that he had 1/6th share and defendants NO. 3 had remaining 1/6th share. 3 in that land in view of the exchange deed. He further pleaded that he had 1/6th share and defendants NO. 3 had remaining 1/6th share. Defendant No. 1 further pleaded in that suit that defendant no. 3 be restrained from transferring that land. Defendant no. 2 and said Chhailu were also made parties in that suit. They supported the case of defendant no. 1 in their written statement. However, defendant no. 3 contested that suit and specifically pleaded that he, was the absolute owner in exclusive possession of the subject matter of that suit. He further pleaded that defendant no. 1 had no right, title or interest in the property in dispute because he had not given any land for property to Prabhu and Randhir etc in exchange dated 7.4.1961 and that defendants no. 2, 3 and said Chhailu had 1/3rd share each in the property in dispute. Defendant No. 1 filed replication in that suit. In his replication, he had altogether denied that house or plots were given in that exchange and he had never set-up the case that the house and the plot given by defendant no. 3 in exchange belonged to them jointly. He simply pleaded that no such property was given in exchange. His denial stood falsified by the Exchange Deed itself because in the same it was mentioned that houses and plots fully detailed and described in para no. 1 of the plaint were given in exchange. He further pleaded that defendant no. 1 knew nothing about the exchange and he never laid any claim to the properties given in exchange by defendant no. 3. He simply claimed because his name appeared in the Exchange Deed, showing him owner of 1/6th share, so he is owner in possession of 1/6th share in the land along with defendant no. 3. Ld. Trial court had neither considered the pleadings of the parties nor examined the evidence on the record for ascertaining the rights of the parties to that suit. Only one factor weighed with ld. Trial court that Jita was shown to be the party in Exchange Deed. The claim of defendant no. 3 was set at naught by introducing conjectures, surmises and the suit of defendant no.1 was finally decreed on 11.5.1991 holding him, owner in possession of 1/6th share of the land in dispute with defendant no. 3. The appeal filed by defendant no. The claim of defendant no. 3 was set at naught by introducing conjectures, surmises and the suit of defendant no.1 was finally decreed on 11.5.1991 holding him, owner in possession of 1/6th share of the land in dispute with defendant no. 3. The appeal filed by defendant no. 3 against the judgment and decree dated 11.5.1991, was also dismissed on 4.9.1992 by the court of the then ld. Additional District Judge, Rohtak. It is further the case of the plaintiffs that the finding of decree dated 11.5.1991 had put the rights of the plaintiffs and defendant no. 4 in jeopardy to establish their rights. The plaintiffs first of all had filed a Civil Suit against their father, who is defendant No. 3 claiming that since the year 1970, the plaintiffs and defendant No.4 are owners in possession of entire 1/3 share in the property in dispute and that defendant no. 3 had no right or title in it. Defendant no. 3 had admitted the claim of the plaintiffs and in view of his disclaimer, the suit of the plaintiffs and defendant No. 4 was decreed on 15.10.1992. On the basis of decree dated 15.10.1992, the plaintiffs and defendant no. 4 filed objections before the Revenue officers before whom proceedings of sanction of Mutation on the basis of civil court decree dated 11.5.1991 in favour of defendant no. 1 were pending. The right and authority of defendant No.1 to get the mutation sanctioned was challenged on the grounds that he was neither owner nor in possession of the suit property and that the plaintiffs and defendant No. 4 were owner in actual possession of 1/3rd share of the property in dispute equal to 3 Kanals 1 Marlas and on that 3 Kanals 1 Marlas land residential house and residential plots were constructed by the plaintiffs and defendant NO. 4 and the Civil Court decree was nullity. Tehsildar, Rohtak referred the mutation being disputed to the district Revenue officer for its decision. Therefore, the matter was ceased and determined by Shri Sandeep Garg, Asstt. Collector, Rohtak on 29.5.1993, vide which he sanctioned the mutation in favour of defendant no. 1 Before Shri Sandeep Garg, the nefarious designs of defendant no. 1 exposed. Tehsildar, Rohtak referred the mutation being disputed to the district Revenue officer for its decision. Therefore, the matter was ceased and determined by Shri Sandeep Garg, Asstt. Collector, Rohtak on 29.5.1993, vide which he sanctioned the mutation in favour of defendant no. 1 Before Shri Sandeep Garg, the nefarious designs of defendant no. 1 exposed. The claim of the plaintiffs that they were in actual possession of the property in dispute and Jita had never been in possession or any part of the same could not be denied and denounced by defendant no. 1. Then he took the stand that he had been held a co-sharer by the Civil Court. Therefore, the possession of the plaintiffs over the property in dispute was that of co-sharer and that must be deemed to be on behalf of other co-sharers. Accepting this proposition of law, ld. Collector rejected the claim of the plaintiffs and dismissed the appeal simply on the ground that the plaintiffs had obtained a decree against defendant no. 3 in respect of 1/3rd share, whereas he was entitled for 1/6th share only. The Revenue Authorities ignored the facts that defendant no. 3 had denied the rights of defendant no. 1 in the property in dispute. The Mutation was sanctioned alone in favour of defendant no. 3 in the year 1962 and since then the entire Revenue record stood in his name and he had been asserting his absolute right on the property in dispute. With these averments, the plaintiffs have filed this suit, praying for a decree for declaration to the effect that the decrees dated 11.5.1991 of ld. trial court maintained by Ist Appellate Court on 4.9.1992 and Mutations dated 29.5.1993 and order dated 20.9.1993 of Collectors are illegal, null and void without jurisdiction against the principles of natural justice and provisions of law and are to be set-aside on the grounds that defendant no.1 had never been in possession of the suit property. That the plaintiffs and defendant no. 4 had constructed residential house on residential plots/Gher and are residing therein with their families and to the knowledge and notice of defendant no.1. Defendant no.1 never raised any objection. Therefore, decree dated 11.5.1991 is not binding upon them that Jita was put of possession of the property in dispute. Therefore, his suit for permanent injunction and for declaration was not maintainable that the suit of defendant no. Defendant no.1 never raised any objection. Therefore, decree dated 11.5.1991 is not binding upon them that Jita was put of possession of the property in dispute. Therefore, his suit for permanent injunction and for declaration was not maintainable that the suit of defendant no. 1 was hit by the law of limitation; that mere incorporation of name of Jita in the exchange deed, did not make him owner of the property in dispute. Jita; had not given any thing in exchange. Therefore, he was not entitled to get any share in the property in dispute. Plaintiffs had also prayed for a decree for permanent injunction restraining defendant no. 1 from alienating the property in dispute in any manner. 3. Defendant no. 1 Jita appeared and filed his written statement before ld. trial court contesting the suit on the ground that the plaintiffs and defendant no. 4 had no title or interest in the land in dispute. He and his brother Gugan were the owners in possession in equal shares to the extent of 1/3rd share along with other co-sharers. He further pleaded that the plaintiffs and defendants no. 3 and 4 were not exclusive owners of the house, Gher/plot and the site for the shop as pleaded in the para no. 1 of the plaint; that the property in dispute was not the property of Joint Hindu Family of the plaintiffs, defendant no.3 and defendant No.4. Defendant No.1 admitted that the property in dispute is part and parcel of rect. and killas numbers mentioned in para no.2 of the plaint. But he denied the fact that defendant No.2 , 3 and Chhailu took the land in dispute in exchange. He pleaded that 1/3 share of the suit land was taken in exchange by him and defendant no. 3 in equal share and rest of the share was taken by Meda and Chhailu. The houses and plots given to Parbhu etc. in lieu of the land in dispute were also owned and possessed by him. He further pleaded that he got the actual physical possession of the land in dispute alongwith Gugan, Chhailu and Meda. But the mutation was wrongly sanctioned by the Revenue Authorities, omitting his name. He denied the fact that the partition of the land in dispute took place between the co-sharers. He further pleaded that Gugan, Meda, Chhailu and he (defendant no. But the mutation was wrongly sanctioned by the Revenue Authorities, omitting his name. He denied the fact that the partition of the land in dispute took place between the co-sharers. He further pleaded that Gugan, Meda, Chhailu and he (defendant no. 1) are joint owners in possession of the property in dispute and no oral petition was ever effected between the parties as alleged in the plaint. He denied the exclusive ownership and possession of the plaintiffs and defendant no. 4 on the property in dispute on the basis of family settlement and pleaded that defendant no. 3 was holding 1/8th share in the suit land and he is still holding that share. He denied the facts that the plaintiffs and defendant NO. 4 had constructed a residential house over the plot and a room and had installed a tube well over the land in dispute. It is admitted that he had filed a Civil Suit for permanent injunction against defendant no. 2, 3 and Chhailu. That suit was decreed and appeal filed by defendant no. 3 was also dismissed by the then ld. Addl. District Judge, Rohtak. The whole case was rightly adjudicated and defendant No.3 and he were rightly declared owners in possession of 1/6th share each in the land in dispute. He denied the partition of land in dispute between him and defendant no.3 in the year 1950 and that Mutation of exchange was wrongly sanctioned in favour of Gugan. He further pleaded that the earlier Mutation has been corrected vide Mutation NO. 1382 dated 29.5.1993 by the order of ld. Collector, Rohtak; that the suit filed by the plaintiffs against their father was a collusive and was filed with intention to harass respondent no. 1. The decree suffered by defendant no. 3 in favour of the plaintiff regarding the land in dispute was not binding on defendant no. 1 because he was not party in that suit, whereas the decree passed by ld. trial Court and ld. Appellate Court in his favour and against defendant no. 3 is fully binding upon the parties, because the plaintiffs are claiming title through their father and their father was a party in that suit. Defendant no. 1 because he was not party in that suit, whereas the decree passed by ld. trial Court and ld. Appellate Court in his favour and against defendant no. 3 is fully binding upon the parties, because the plaintiffs are claiming title through their father and their father was a party in that suit. Defendant no. 1 further pleaded that the suit of the plaintiffs was barred by principle of resjudicata in view of judgment dated 11.5.1991 passed in civil Suit No. 309/1 of 1986, titled "Jita v. Gugan etc" that the plaintiffs are estopped to file the suit by their own act and conduct; that the suit of the plaintiffs was not maintainable in the present form; that the plaintiffs have no locus standi to file the suit and the suit was liable to be dismissed with special costs u/s 35-A CPC. 3. On the pleadings of the parties, the following issues were framed by the trial Court :- "1. Whether the judgment and decree dated 11.5.1991 passed in Civil Suit bearing No. 309/1 of 1986 and maintained in appeal by the judgment dated 4.9.1992 and further the order dated 29.5.1991 passed by A.C. Ist Grade and order dated 20.9.1993 passed by the Collector are illegal, null and void ? OPP 2. Whether the plaintiffs and defendant No.4 are in exclusive possession of the suit property? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the suit is barred by principle of res judicata? OPD 5. Relief." 4. After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. 5. Admittedly, defendant No.1 Jita and defendant No.3 Gugan are real brothers. Plaintiffs and defendant No.4 are sons of defendant No.3. The property in dispute is part of agricultural land measuring 9 kanals 4 marlas. Admittedly, the suit property was earlier owned and possessed by Prabhu and Randhir etc. They gave the land in dispute in exchange to Gugan, Meda and Chhailu etc. vide exchange deed dated 7.4.1961. The said deed was also signed by defendant No.1. However, at the time of sanction of mutation, name of Jita was not reflected with regard to the suit land. Defendant No.1 filed a Civil Suit bearing No. 309/1 of 1986 pleading that he had 1/6th share in the suit land. vide exchange deed dated 7.4.1961. The said deed was also signed by defendant No.1. However, at the time of sanction of mutation, name of Jita was not reflected with regard to the suit land. Defendant No.1 filed a Civil Suit bearing No. 309/1 of 1986 pleading that he had 1/6th share in the suit land. His name had not been recorded by the Revenue authorities in the revenue record erroneously. He placed reliance on the exchange deed dated 7.4.1961 to substantiate his claim that he had 1/6th share in the suit land. The said suit was decreed vide judgment and decree dated 11.5.1991 and it was upheld in appeal vide judgment Exhibit D1 and Exhibit D2. While deciding issue No.1, it was held that Jita and Gugan were owner in possession of equal share of 1/3rd share of the suit land. Thus, Jita and Gugan were held to be owner in possession of 1/6th share out of the suit land. Since in a suit filed by defendant No.1, the father of the plaintiffs was held to be owner in possession of 1/6th share of the suit land, the plaintiffs cannot re-agitate the same question again. The litigation between defendant No. 1 and defendant No.3 was decided on merits and, hence, it cannot be said that the same was result of fraud. 6. Plaintiffs and defendant No.4 filed a suit against their father claiming that they were owner in possession of 1/3rd share in the suit land. Defendant No.3 admitted the claim of his sons and, consequently, the suit was decreed on 15.8.1992. In the said suit, defendant No. 1 was not a party and, hence, the said judgment and decree fail to advance the case of the plaintiffs nor can it nullify the judgment and decree passed in a suit between defendant No.1 and defendant No.3. In these circumstances, the learned Courts below rightly held that the order dated 29.5.1993 passed by the Assistant Collector 1st Grade Rohtak and order dated 20.9.1993 passed by the Collector, Rohtak and mutation dated 17.10.1992 were legal, binding on all concerned. 7. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed.