Pritam Singh (Dead) through LRs & Ors. v. Hans Raj Singh alias Iqbal Singh & Ors.

This appeal by the defendant/appellants is directed against the judgment and decree dated 7.2.1983, passed by the learned courts below vide which the suit filed by the plaintiff/respondent for possession stands decreed. The plaintiff filed a suit on the pleadings, that Dalip Singh, father of the plaintiff, was owner of land bearing Khasra Nos. 4028/2637, RSA No.696 of 1983 2 3555/3000, 3554/3000 and 2615. Out of this land he sold half share in Khasra No. 2615 for consideration amount of Rs.2300/- (Rupees two thousand and three hundred only) to defendants No.1 to 4 vide registered sale deed. Remaining khasra numbers were also sold to defendants No.1 to 4 for a consideration of Rs.4500/- (Rupees four thousand and five hundred only) on 6.6.1949. The plaintiff filed a suit for declaration for setting aside the sale deeds, executed in favour of defendants No.1 to 4 on the ground that the land in dispute was ancestral qua the plaintiff, and that the sales were without consideration and legal necessity. It was also pleaded that the parties were governed by customs, under which Dalip Singh could not alienate the land without legal necessity and consideration. The suit filed by the plaintiff was decreed and the sales were set aside vide judgment and decree dated 8.1.1955 and 14.4.1954. A decree for possession of land on payment of Rs.420/- (Rupees four hundred and twenty only) and Rs.4500/- (Rupees four thousand and five hundred only), respectively, was passed. Dalip Singh, died on 12.6.1976 leaving behind the plaintiff, as son and defendants No.5 and 6 as his daughters. Dalip Singh executed a Will dated

1.4.1976, vide which he had bequeathed his whole estate in favour of the plaintiff. It was claimed that the plaintiff being legal heir of Dalip Singh was entitled to possession of the land in dispute. After the alienation, defendants No.1 to 4, exchanged the land purchased by them, with Dhannu and got Khasra No.3490/3059 and 3491/4059 and also received Rs.5000/- (Rupees five thousand only), for the area found less, in the exchange. RSA No.696 of 1983 3 Possession by the plaintiff was claimed of the land which was allotted in consolidation in lieu of the land owned by defendant/appellants. The plaintiff claimed that defendants refused to deliver possession and also to pay Rs.5000/- (Rupees five thousand only), in spite of request, therefore, the suit. The suit was contested, but, Charan Kaur defendant in the written statement, admitted the claim of the plaintiff. Defendants No.1 to 3, in their written statement, denied the averments of the plaintiff, on the pleadings that the land in dispute was never sold by Dalip Singh, father of the plaintiff, nor it was ancestral. That the sale was for consideration and legal necessity. It was pleaded, that the alienation was never set aside. Locus standi of the plaintiff to maintain the suit was also challenged, on the ground that other legal heirs of the deceased Dalip Singh were necessary parties. That the suit was bad for non-joinder and misjoinder of necessary parties. Execution of the Will, in favour of the plaintiff was denied. Stand was taken, that the plaintiff was not entitled to possession of the whole land. On the pleadings of the parties, learned trial court framed the following issues:-

1. Whether the plaintiff is the owner of the suit property? OPP

2. Whether the plaintiff is entitled to the possession of the suit property? OPP

3. Relief. Thereafter additional issue was also framed on 11.10.1980 RSA No.696 of 1983 4 which reads as under:-

1. Whether the suit is bad on account of necessary parties, If so, who are those parties? OPD Learned trial court decided issues No.1 and 2 in favour of the plaintiff/respondent, and held that the plaintiff was owner of the suit property and entitled to possession. Additional issue was decided against the defendants. Consequently, the suit was decreed. In appeal, findings recorded by the learned trial court were affirmed and the appeal was also dismissed. Mr.Shailender Jain, learned counsel appearing on behalf of the appellants, contends that this appeal raises the following substantial questions of law, for consideration of this court:

1. Whether the suit filed by the plaintiff could be decreed qua the suit land or part thereof, in absence of the proof of new khasra numbers being allotted in lieu of old khasra numbers?

2. Whether the exchanged land, which was not part of earlier suit decreed, could be included in the suit for possession on the basis of said decree? In support of the substantial questions of law, learned counsel for the appellants, vehemently contended that Dalip Singh son of Bhagwan Singh had sold land measuring 16 kanals 9 marlas by way of two sale deeds RSA No.696 of 1983 5 i.e. Khasra No. 4028/2637 measuring 9 Kanals 4 Marlas situated in village Goraya Tehsil Phillaur, District Jalandhar, for a consideration of Rs.4500/- (Rupees Four thousand and five hundred only). He also sold 7 kanals 5 marlas i.e. half share of khasra no. 2615 (12 Kanals 17 Marlas), 3554/3000 (0-17) and half share of khasra No.3555/3000 (0-16) and also half share of khasra No.2615. Thus total land sold was 16 kanals 9 marlas. As already observed above, these sales were challenged by the the plaintiff, the suit was decreed and the sales in favour of the vendee/appellants were held to be void and not binding on the rights of the reversioners. After the passing of the decree the appellants exchanged land measuring 7 kanals 5 marlas in May, 1951, with Dhannu and received in exchange khasra No.3490/3059 (2 kanals) and Khasra No.3491/3059 (2 kanal 18 marlas). Mutation was also sanctioned. The appellant also received Rs.5000/- (Rupees five thousand only) from Dhannu. The contention of the learned counsel for the appellants was, that the land exchanged, being not part of previous decree, could not be claimed, by the plaintiff. The plaintiff/respondent was only entitled to the area under the decree, and not any other area. This plea of the learned counsel for the appellants cannot be accepted. Once the property was exchanged, and it stood co-related with the decreed suit land, the learned courts below were justified to decree the suit qua the exchanged land. The contention of the learned counsel for the appellants cannot be accepted, as a decree can not be defeated by exchange or by any other means. It was also proved that consolidation proceedings, had taken RSA No.696 of 1983 6 place in the year 1954 and new numbers were allotted in lieu of old khasra numbers i.e. decreed which were 1152 (1-19), 1148 ( 1-11),1153 (2-5), 1156 (3-14), 1146 (3-13). Suit for possession for these khasra numbers was filed. Khatauni No.Ex.P.13 showed that in place of khasra No.3491/3559 khasra No.1152 (1-19) was allotted. As per khatauni Ex.P.14 in place of khasra No.3491/3559, Khasra No.1156 (3-14) was allotted. As per Khatauni Ex.P.15, Khasra No.1153 (2-5) and 1148 (1-11) was allotted. As already observed above, the contention of the learned counsel for the appellants was, that the plaintiff/respondent was not entitled to exchanged land, and could only seek possession of the land covered under the decree. The exchanged land could not be claimed by the plaintiff. This plea on the face of it deserves to be rejected. Once it was proved that the exchanged land was in possession of appellants in lieu of decreed land, it was always open to the plaintiff to seek possession of exchanged land. The parties by exchange cannot defeat the decree passed by competent court. Learned counsel for the appellant also contended that except for Khasra No.1148 and 1153/3, no other Khasra number was connected with the old numbers, therefore, the learned courts below committed an error in decreeing the suit, by misreading the oral and documentary evidence on record. The documentary evidence on record, shows that the appellant was trying to take benefit of a typographical error in khasra numbers though Khatauni number was correctly depicted. Whole of the land RSA No.696 of 1983 7 except Khasra No.1146 measuring 3 kanals 13 marlas stood connected. The learned courts could not decree the suit qua khasra No.1146 measuring (3Kanal 13 Marlas) for failure on the part of plaintiff/respondents to connect this with the decree passed in earlier suit, challenging the sale in favour of the appellants. This contention of the learned counsel for the appellant could not be controverted. Learned courts below, therefore, could not have decreed the suit qua Khasra number 1146 (3-13), though were justified in decreeing the suit qua other land. The part of decree to that effect, therefore, is outcome of misreading of oral and documentary evidence. The substantial questions of law deserve to be answered in favour of the appellant. The judgment and decree qua khasra number 1146 (3-13) being outcome of misreading of evidence, therefore, cannot be sustained in law. For the reasons stated, this regular second appeal is partly allowed. The suit of the plaintiff/respondent qua khasra No.1146 (3-13) is ordered to be dismissed, while judgment and decree passed by the learned courts below qua other khasra numbers is upheld. No costs.

16.03.2010 (Vinod K.Sharma) Judge RSA No.696 of 1983 8 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH COCP No.1061 of 1993 RSA No.696 of 1983 Date of Decision: .03.2010 Jagir Singh & Ors. ..Petitioners Vs. Hans Raj Singh alias Iqbal Singh & Anr. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Shailendra Jain, Advocate, for the appellants. Mr.R.L.Batta, Sr.Advocate with Mr.HPS Ghuman, Advocate, for the respondents. --- Vinod K.Sharma,J. Dismissed as not pressed. .03.2010 (Vinod K.Sharma) Judge