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2011 DIGILAW 824 (PNJ)

Dalbir Singh v. Ram Kaur

2011-03-16

L.N.MITTAL

body2011
JUDGMENT Mr. L.N. Mittal, J. (Oral).: - Plaintiffs Dalbir Singh and Gurdial Singh who were successful in the trial court but have been non-suited by the lower appellate court are in second appeal. 2. This is third round of litigation between the parties. In the first round of litigation Ram Kaur widow of Jhanda Singh son of Surain Singh was held to have life estate in the suit property vide judgment dated 26.4.1965 Ex. P1 passed by this Court in RSA No. 1189 of 1957 affirming judgments of both the courts below. However, defendant no. 1 Ram Kaur executed gift deed dated 4.3.1965 in favour of defendant/respondent no. 2 regarding the suit property. Plaintiffs started second round of litigation to challenge the said gift deed. Their suit was dismissed by trial court. However, in first appeal parties effected compromise. Plaintiffs and defendants no. 1 and 2 herein were parties to the said litigation. The appeal was allowed in terms of the compromise vide order and decree dated 6.12.1966 Ex. P2 and P3. The said compromise order is reproduced hereinunder:- “In view of the compromise effected between the parties, I accept the appeal and setting aside the judgment and decree of the trial court, grant the plaintiffs-appellants a declaratory decree to the effect that the gift in dispute effected by defendant No. 1 in favour of defendant No. 2 on 4.3.1965 relating to the land in dispute shall not be binding on the plaintiffs-appellants after the death of Shmt. Ram Kaur defendant No. 1 to the extent of one-half share of the land in dispute and that the plaintiffs would be entitled to recover possession of the said half share of the land after the death of defendant no. 1 on payment of Rs.900/- to defendant No. 2. The parties are left to bear their own costs throughout.” 3. In spite of the aforesaid compromise decree defendant no. 2 alienated the suit land in favour of defendants no. 3 to 9 who are wife and sons of defendant no. 2 and defendants no. 3 to 9 further alienated the suit land in favour of defendants no. 10 to 16. The said alienations have been challenged in the instant suit out of which this second appeal has arisen. 4. Defendants contested the suit and defended the alienations in question. 5. 2 and defendants no. 3 to 9 further alienated the suit land in favour of defendants no. 10 to 16. The said alienations have been challenged in the instant suit out of which this second appeal has arisen. 4. Defendants contested the suit and defended the alienations in question. 5. Learned Additional Senior Sub Judge, Tarn Taran vide judgment and decree dated 23.11.1993 decreed the plaintiffs’ suit. However, first appeal preferred by defendants no. 1 to 9 has been allowed by learned Additional District Judge, Amritsar vide judgment and decree dated 5.9.2006 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. 6. I have heard learned counsel for the parties and perused the case file. 7. Learned senior counsel for the appellants vehemently contended that in view of compromise order and decree dated 6.12.1966, plaintiffs’ suit was rightly decreed by the trial court and finding of the lower appellate court to the contrary is, therefore, perverse and illegal and unsustainable in law. 8. On the other hand, learned counsel for the respondents contended that Ram Kaur had life estate in the suit property which ripened into full ownership in view of section 14 of the Hindu Succession Act, 1956 (in short, the Act) and consequently the plaintiffs have no right, title or interest in the suit land. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in Shakuntla Devi vs. Kamla & Ors., 2005(4) J.T.315. It was also contended that plaintiffs are sons of brother of husband of defendant no. 1 and since defendant no. 1 has now died during the pendency of the instant second appeal, plaintiffs have no right, title or interest in the suit land. 9. I have carefully considered the rival contentions. Compromise order and decree dated 6.12.1966 clearly stipulate that gift deed in question shall not be binding on the plaintiffs after the death of Ram Kaur defendant no. 1 to the extent of half share in the suit land. It is further stipulated that plaintiffs would be entitled to recover possession of the said half share of the suit land after the death of defendant no. 1 on payment of Rs.900/- to defendant no. 2. 1 to the extent of half share in the suit land. It is further stipulated that plaintiffs would be entitled to recover possession of the said half share of the suit land after the death of defendant no. 1 on payment of Rs.900/- to defendant no. 2. Consequently, contention of counsel for respondents that it was only declaratory decree cannot be accepted because the said compromise decree granted twin reliefs to the plaintiffs although relating to only half share in the suit land and not regarding the entire suit land. The compromise decree granted declaration that the gift deed would not be binding on the plaintiffs after death of Ram Kaur. The compromise decree further granted relief of possession of half of the suit land to the plaintiffs after death of Ram Kaur defendant no. 1 on payment of Rs.900/- to the plaintiffs. The said decree on the basis of compromise was passed 10 years after the Act had come into force. Consequently, contention of counsel for the respondents based on judgment in the case of Shakuntla Devi (supra) cannot be accepted because compromise was effected on 6.12.1966 and as per compromise not only relief of declaration under the custom was granted to the plaintiffs but also relief of possession of half share of the suit land was granted with necessary stipulations. Had it been a simple declaratory decree only, the contention raised by the counsel for the respondents could be accepted. However, since the compromise decree also provided relief of possession of half share of the suit land to the plaintiffs with certain conditions, the compromise decree has not become redundant and is certainly enforceable. The plaintiffs may not be natural heirs of Ram Kaur on her death but in view of the compromise decree dated 6.12.1966, the plaintiffs are entitled to the relief granted to them by the said decree on the basis of compromise. 10. For the reasons aforesaid, I find that the approach of the lower appellate court in non-suiting the plaintiffs is completely perverse and illegal and therefore, unsustainable in law. Substantial question of law to this effect arises in the instant second appeal and is accordingly answered in favour of the appellants. Resultantly, the instant second appeal is allowed. 10. For the reasons aforesaid, I find that the approach of the lower appellate court in non-suiting the plaintiffs is completely perverse and illegal and therefore, unsustainable in law. Substantial question of law to this effect arises in the instant second appeal and is accordingly answered in favour of the appellants. Resultantly, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside and judgment and decree of the trial court decreeing suit of the plaintiffs are restored. ---------0.B.S.0------------