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2009 DIGILAW 1884 (PNJ)

Sukhdev Kaur v. Baljinder Singh

2009-11-03

SABINA

body2009
JUDGMENT Sabina, J.- Plaintiffs-appellants filed a suit for possession, which was dismissed by the Sub Judge Ist Class, Mansa vide judgment and decree dated 19.8.1994. The appeal filed by the plaintiffs-appellants was partly allowed by the Additional District Judge, Mansa vide judgment and decree dated 29.11.1995 and the suit of the plaintiffsappellants was decreed to the extent of 1/10th share. Hence, the present appeal by the plaintiffs. 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The plaintiffs, claiming themselves to be heris of Chanan Singh, filed a present suit for possession of land to the extent of ½ share on the allegations that Chanan Singh had earlier two marriages and Sukhdev Kaur was his third wife. The defendants were the sons of second wife namely Surjit Kaur, whereas, the plaintiff Sukhdev Kaur is widow and the plaintiffs No.2 and 3 are the sons of Chanan Singh from Sukhdev Kaur. Chanan Singh died on 4.1.1987 and after his death, the plaintiffs became owner to the extent of ½ share. They were dispossessed forcibly which is necessitated filing of the present suit. 3. The defendants contested the suit on the grounds that Chanan Singh had suffered a decree on 12.12.1975 in favour of the defendants transferring the land to them and on the basis of same the mutation was sanctioned and they were in possession of land since then. In the alternative it is pleaded that since they were in possession of the land in dispute since 1975, they had become owner by adverse possession.” 3. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs have no locus standi and no cause of action to file the suit? OPD 2. Whether the suit is not competent in view of legal objection No.4 of written statement? OPD 3. Whether the suit is vague as alleged in legal objection No.8 of the written statement? OPD 4. Whether the plaintiff Sukhdev Kaur is widow of deceased Chanan Singh while plaintiffs No.2 and 3 are the issues of deceased Chanan Singh? OPP 5. Whether the suit is not competent in view of legal objection No.4 of written statement? OPD 3. Whether the suit is vague as alleged in legal objection No.8 of the written statement? OPD 4. Whether the plaintiff Sukhdev Kaur is widow of deceased Chanan Singh while plaintiffs No.2 and 3 are the issues of deceased Chanan Singh? OPP 5. Whether deceased Chanan Singh had transferred the land in suit in favour of the defendants vide civil suit No.397 of 12.12.1975 decided on 23.2.1976 and defendants are therefor owners in possession of suit land, if so to what effect? OPD 6. Whether the plaintiffs are entitled to possession of the suit land? OPP 7. Whether the suit is false or vexation and the defendants are entitled to special costs. If so to what extent? OPD 8. Relief. “ 4. Learned counsel for the appellants has submitted that the Courts below had erred in dismissing the suit of the plaintiffs for possession. 5. Learned counsel has further submitted that Sukhdev Kaur, plaintiff No.1 has since died. Learned counsel has further submitted that Kiranbir KaurR. appellant No.3 is not claiming any share in the suit property and appeal qua her be dismissed as withdrawn. Ordered accordingly. 6. The substantial question of law that arises in this case is “ whether the Courts below have misread the evidence on record and consequently the findings of the Courts below are perverse?” 7. Admittedly, Chanan Singh was the owner of the property in dispute. Defendants as well as appellant No.2 Karanbir Singh @ Gorkh Singh @ Karam Singh are the sons of Chanan Singh. The defendants as well as appellant No.2 had filed Civil Suit No.397 of 12.12.1975 against their father Chanan Singh. The said suit was decreed on 23.2.1976 and the following order was passed:- Heard. The suit of the plaintiffs is decreed as per statements of defendants. They are directed to be the owners of the 2/5th share of land measuring 398k 15m situated in village Ralla and 4/5 share of 11k 8 m situated in village Ralla and 4/5share out of ½ share of 151k 12m situated in village Taru Kirt described in the heading of the plaint. Decree sheet be prepared. File be consigned to R.O.” 8. Chanan Singh died on 4.1.1987. The share in the suit property which had been retained by Chanan Singh was also to devolve on his heirs. Decree sheet be prepared. File be consigned to R.O.” 8. Chanan Singh died on 4.1.1987. The share in the suit property which had been retained by Chanan Singh was also to devolve on his heirs. Since Chanan Singh has suffered a consent decree in favour of his four sons i.e. defendants and plaintiff No.2, and after his death the share, which was retained by Chanan Singh, would also go to his four sons in equal shares. Plaintiff No.1, widow of Chanan Singh, has since died and Kiranbir Kaur-appellant No.2, daughter of Chanan Singh has got the appeal dismissed as withdrawn. The suit of plaintiff No.2 Karanbir Singh @ Gorkh Singh @ Karam Singh was thus liable to be decreed qua 1/4th share out of the suit property. Learned Additional District Judge had decreed the suit of the plaintiffs to the extent of 1/10 share, whereas, the suit was liable to be decreed qua appellant No.2 to the extent of 1/4th share. The judgments of the Courts below are, thus, based on misreading of evidence and are perverse. Hence, the substantial question of law arises in this appeal is answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree passed by the learned Additional District Judge is modified to the extent that the suit qua appellant No.2 is decreed to the extent of 1/4th share. --------------