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2016 DIGILAW 1087 (PNJ)

Malkiat Singh v. Jasbir Singh

2016-04-06

DARSHAN SINGH

body2016
JUDGMENT Mr. Darshan Singh, J.:- The present appeal has been preferred by the appellant/plaintiff against the judgment and decree dated 28.02.2013 passed by the learned Additional District Judge, Ferozepur, vide which the appeal filed by him against the judgment and decree dated 04.10.2010, passed by the learned Civil Judge (Jr. Division), Abohar, has been dismissed. 2. For the sake of convenience, the status of the parties is being mentioned as in the original suit. 3. Appellant-plaintiff has filed the suit for seeking declaration that he and defendants no.2 to 5 are owner in possession of the suit land measuring 18 Kanals 3 Marlas as detailed and described in the head note of the plaint situated within the revenue estate of Village Rai Pur, Tehsil, Abohar, District Ferozepur. The judgment and decree dated 14.03.1992 passed in civil suit no. 1327 dated 24.12.1991 passed by the then Learned Additional Senior Sub Judge, Abohar is illegal, void ab initio, based on fraud and misrepresentation and is ineffective upon the rights of the plaintiff as well as defendants no.2 to 5. he has also challenged the sale deed bearing Vasika no. 4851 dated 23.01.2001 executed by defendant no.1 in favour of defendant no.6 and the subsequent mutation. He also sought the consequential relief of permanent injunction restraining defendants no. 1 and 6 from alienating the suit property in any manner. 4. As per the averments in the plaint, the plaintiff and defendant no.3 are the real brothers. Defendants no. 4 and 5 are their real sisters. Defendant no.2 is their mother. Defendant no.1 is the son of uncle of appellant and deceased Veer Singh. Veer Singh had died issue-less. Appellant-plaintiff and defendants no.2 to 4 are the legal heirs of Veer Singh. Except them, there is no other legal heir of Veer Singh. It is further pleaded that the plaintiff, defendants no.2 to 5 and deceased Veer Singh constituted the joint Hindu Family. Deceased-Veer Singh possessed the agriculture land as detailed and described in the head note of the plaint along with other land situated in village Rai Pur, Tehsil Abohar, District Ferozepur. The said property was in the name of the father of the plaintiff, defendants no.3 to 5 and late Veer Singh being the Karta. Deceased-Veer Singh possessed the agriculture land as detailed and described in the head note of the plaint along with other land situated in village Rai Pur, Tehsil Abohar, District Ferozepur. The said property was in the name of the father of the plaintiff, defendants no.3 to 5 and late Veer Singh being the Karta. In the absence of appellant-plaintiff and defendants no.2 to 5, deceased Veer Singh in connivance with defendant no.1 fraudulently, secretly and due to undue influence got the decree dated 09.12.1987 passed in civil suit no. 420-1 of 07.08.1987 from the Court of learned Sub Judge Ist Class, Fazilka including the share of the plaintiff and defendants no. 2 to 5 in order to deprive them of their right of inheritance of the properties of late Harbax Singh. Now, defendant no.1 is asserting himself to be the owner in possession of the suit land on the basis of impugned judgment and decree dated 14.03.1992 allegedly suffered by Veer Singh. In fact, Veer Singh never presented himself before the Court nor engaged any counsel nor he filed any written statement or got recorded his statement. Defendant no.1 is also not the member of the joint Hindu Family of Veer Singh or Harbax Singh and had no concern either with the ownership or possession of the land in dispute. The impugned decree was also compulsory registrable and is in violation of the provisions of the Registration Act, Stamp Act and Transfer of Property Act. Hence the suit. 5. Defendants contested the suit by filing the separate written statements. Defendant no.1 Jasbir Singh filed the written statement pleaded inter alia that Veer Singh had become owner of the suit property by way of decree passed by the Court. He was competent to deal with the property as per his own will. He had already sold the property and purchaser is owner in possession thereof. It is further pleaded that the plaintiff has himself admitted the decree in the compromise dated 18.10.2001 and has got the sale deed of the land measuring 16 Marlas from him as per the said agreement. All other pleas raised in the plaint were controverted. 6. Defendants no. 2 to 5 pleaded that they are the legal heirs of deceased Veer Singh, but they have been impleaded without any cause. They also prayed for dismissal of the suit. 7. All other pleas raised in the plaint were controverted. 6. Defendants no. 2 to 5 pleaded that they are the legal heirs of deceased Veer Singh, but they have been impleaded without any cause. They also prayed for dismissal of the suit. 7. Defendant no.6 pleaded that he has purchased the suit land measuring 27 Kanals 8 Marlas vide registered sale deed dated 23.01.2001 and is a bonafide purchaser. He also pleaded that the plaintiff is estopped by his own act and conduct from filing the suit as vide agreement dated 18.10.2001, the plaintiff-appellant has admitted the judgment and decree dated 14.03.1992 as legal and binding and had undertaken to withdraw the suit. He also got land measuring 16 Marlas from defendant no.1 vide registered sale deed dated 24.10.2001. With these pleas, the defendants pleaded for dismissal of the suit. 8. From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 15.09.2003 :- 1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the judgment and decree dated 14.03.1992 in Civil Suit No. 1327 dated 24.12.1991 is illegal, void ab initio, wrong having been passed on the basis of fraud and misrepresentation, if so its effect?OPP 3. Whether the sale deed bearing Vasika no. 4851 dated 23.01.2001 is illegal, null and void without consideration, if so its effect?OPP 4. Whether plaintiff is entitled for permanent injunction as prayed for?OPP 5. Whether the suit is within limitation?OPP 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 8. Whether the suit is bad for mis joinder and non joinder of the necessary parties?OPD 9. Whether plaintiff has no locus standi and cause of action to file the present suit?OPD 10. Whether suit is not properly valued for the purpose of court fee and jurisdiction?OPD 11. Whether the suit is liable to be dismissed with special costs? OPD 12. Relief. 9. On appreciating the material on record and the contentions raised by learned counsel for the parties, the learned trial Court dismissed the suit filed by the appellant-plaintiff vide impugned judgment and decree dated 04.10.2010. 10. Whether the suit is liable to be dismissed with special costs? OPD 12. Relief. 9. On appreciating the material on record and the contentions raised by learned counsel for the parties, the learned trial Court dismissed the suit filed by the appellant-plaintiff vide impugned judgment and decree dated 04.10.2010. 10. Aggrieved with the aforesaid judgment and decree dated 04.10.2010, the appellant-plaintiff has preferred the appeal and the same has also been dismissed by the learned Additional District Judge, Ferozepur, vide impugned judgment and decree dated 28.02.2013. Hence this Regular Second Appeal. 11. I have heard Mr.Sandeep Jasuja, Advocate, learned counsel for the appellant and have meticulously gone through the record of the case. 12. Initiating the arguments, learned counsel for the appellant contended that the suit property was the coparcenary property of the joint Hindu Family constituted by the plaintiff, defendant no.3, deceased-Veer Singh and defendant no.2 headed by their father Harbax Singh. He contended that Harbax Singh had no right to suffer the decree dated 09.12.1987 of the property of the joint Hindu Family in favour of defendant no.1-Jasbir Singh and deceased-Veer Singh. He further contended that similarly Veer Singh had also no right to suffer the decree dated 14.03.1992 in favour of defendant no.1-Jasbir Singh. He contended that the impugned decrees are illegal, null and void and ineffective on the rights of the plaintiff and defendants no.2 to 5. These decrees have only been suffered to deprive them of their right of inheritance. 13. He further contended that the impugned judgment and decrees are the result of fraud, misrepresentation and undue influence. In fact, the persons who had been shown to have suffered the decrees never appeared before the Court nor they filed any written statement admitting the claim. Thus, he contended that the impugned judgment and decrees are illegal. He further contended that the sale deed dated 23.01.2001 executed by defendant no.1 in favour of defendant no.6 on the basis of impugned decrees, is also illegal and is liable to be set aside being ineffective on the rights of the plaintiff. Thus, he contended that the learned Courts below have wrongly dismissed the claim of the plaintiff. 14. I have duly considered the aforesaid contentions. 15. Learned counsel for the appellant has assailed the impugned judgment and decrees on two grounds. Thus, he contended that the learned Courts below have wrongly dismissed the claim of the plaintiff. 14. I have duly considered the aforesaid contentions. 15. Learned counsel for the appellant has assailed the impugned judgment and decrees on two grounds. Firstly, that the suit property was the coparcenary property of the joint Hindu Family constituted by plaintiff, defendant no.3, deceased-Veer Singh and defendant no.2, headed by Harbax Singh, being the Karta and secondly that the impugned decrees are based on fraud, misrepresentation and undue influence. 16. In order to succeed it was incumbent upon the plaintiff to establish that he constituted the joint Hindu Family with defendants no.2, 3, deceased-Veer Singh and Harbax Singh and the suit property was coparcenary property of the said joint Hindu Family. But, in my opinion, the plaintiff has not been able to establish that the suit property was ancestral/coparcenary property in the hands of Harbax Singh, his father and then in the hands of Veer Singh, who have suffered the decrees. Rather, even from the admissions made by the plaintiff and his witness in the cross-examination, it comes out that the suit property was the absolute property of Harbax Singh, who had suffered the decree in favour of defendant no.1 and deceased-Veer Singh. The plaintiff has admitted in the cross-examination that the suit property was purchased by his father from Kewal Krishan Nagpal and he did not contribute any funds towards sale consideration when it was purchased by his father. Similarly, PW-1 Jagdev Singh has admitted in the cross-examination that the suit property was not the ancestral property of the plaintiff. Rather, it was purchased by Harbax Singh, the father of plaintiff from Baniyas about 35-40 years ago. The aforesaid admissions of the plaintiff and his witness establish that Harbax Singh was the absolute owner of the suit property by way of purchase. The plaintiff has also admitted in the cross-examination that he owns 6 acres of land, which was transferred to him by his father Harbax Singh by way of decree. This admission on his part shows that the plaintiff has also got 6 acres of land from his father Harbax Singh by way of consent decree. The plaintiff has also admitted in the cross-examination that he owns 6 acres of land, which was transferred to him by his father Harbax Singh by way of decree. This admission on his part shows that the plaintiff has also got 6 acres of land from his father Harbax Singh by way of consent decree. So, if he can obtain the land from his father Harbax Singh by way of consent decree, it does not lie in his mouth to challenge the impugned decree alleging that the suit property was ancestral and coparcenary property of Harbax Singh and he was not competent to transfer the same. Thus, the plea raised by learned counsel for the appellant that Harbax Singh, the father of the plaintiff was not competent to suffer the decree in favour of defendant no.1-Jasbir Singh and deceased-Veer Singh on the plea that the suit property was coparcenary property of the joint Hindu Family, carries no substance. Harbax Singh being absolute owner of the suit property was competent to alienate the same in any manner he likes. Deceased-Veer Singh was also the absolute owner of his property on the basis of the decree dated 09.12.1987 and he was also competent to alienate the same in favour of defendant no.1 vide impugned judgment and decree dated 14.03.1992. 17. The plea of fraud, misrepresentation and undue influence is not available to the present plaintiff-appellant. The decree dated 09.12.1987 in civil suit no. 420-1 of 07.08.1987 has been passed on the basis of the written statement filed by Harbax Singh and the statement made by him before the Court admitting the claim of defendant no.1- Jasbir Singh and deceased-Veer Singh, vide which Veer Singh was declared owner of the land measuring 34 Kanals 3 Marlas and Jasbir Singh was declared owner in possession of the land measuring 20 Kanals 12 Marlas. There is nothing on record to show that said Jasbir Singh and Veer Singh had exercised any fraud, misrepresentation or undue influence to procure the said decree. From the evidence adduced by the contesting defendants, it comes out that the impugned decrees were passed after following the due procedure of law. Harbax Singh had remained alive for about 6 years after passing of the decree dated 09.12.1987. From the evidence adduced by the contesting defendants, it comes out that the impugned decrees were passed after following the due procedure of law. Harbax Singh had remained alive for about 6 years after passing of the decree dated 09.12.1987. But, he had not challenged the said decree during his lifetime and has not alleged that any fraud was played with him or he was misrepresented the facts and any undue influence was exercised to procure the decree. Similarly, deceased-Veer Singh, who had suffered the decree dated 14.03.1992 in favour of defendant no.1-Jasbir Singh has also filed the written statement admitting the claim of defendant no.1 Jasbir Singh and also made the statement in his favour in Court on the basis of which the decree dated 14.03.1992 was passed. Said Veer Singh had also not challenged the decree dated 14.03.1992 during his lifetime on the plea of fraud, misrepresentation and undue influence. Thus, the persons who had suffered the decrees have never raised any plea of fraud, misrepresentation and undue influence during their lifetime. The plaintiff, who was not party to the decree had no locus standi to challenge the decree on the grounds of fraud, misrepresentation or undue influence. Thus, the plaintiff has not been able to establish that the impugned judgment and decrees suffered from any legal infirmity. Rather, the same are legal and valid. 18. Thus, I have no reason to differ with the well reasoned findings recorded by the learned Courts below, which do not warrant any interference by this Court in the Regular Second Appeal. 19. Consequently, the present appeal having no merits is hereby dismissed with no orders as to costs.