Karnail Singh & Anr. v. Garja Singh & Ors.

Present: Mr.H. S. Dhillon, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.1665-C of 2010 Allowed as prayed for. CM No.1666-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 8 days in filing the appeal is condoned. CM No.1667-C of 2010 This is application for condonation of delay of 526 days in refiling the appeal. It is alleged that the appeal was returned with objections repeatedly. Ultimately, it was returned on 22.04.2009. It is alleged that Clerk of the counsel put the paper book in some other brief which was fixed for hearing in the month of May, 2009. It is also alleged that the paper book was traced on 22.12.2009 and thereupon the appeal was re-filed. Learned counsel for the applicant-appellants contended that there is sufficient ground for condonation of delay in re-filing the RSA No.593 of 2010(O & M) -2- appeal. The contention cannot be accepted. When the other case, in which paper book of this case had allegedly been placed, was fixed in May, 2009, it cannot be said that this paper book could not be traced in May, 2009, when the said other case was fixed for hearing. On the other hand, it appears that the appellants chose to re-file the appeal on 23.12.2009 and, therefore, have alleged that paper book was traced on 22.12.2009. However, otherwise, there was no occasion for the paper book of the instant case being suddenly traced on 22.12.2009. No sufficient ground for condonation of long delay of 526 days in re-filing the appeal is made out. The application is accordingly dismissed. Main Appeal. Since delay in re-filing the appeal has not been condoned, the appeal is liable to dismissal on this score. However, even on merits, the appellants cannot succeed. This is second appeal by plaintiff No.1 and legal representative of plaintiff No.2, having failed in both the Courts below. Suit was filed by Karnail Singh and Joginder Singh claiming themselves to be sons of Bishan Singh. Joginder Singh has since died and is represented by Gurmit Kaur-appellant No.2 as his legal representative. Gurmit Kaur is daughter of Karnail Singh- plaintiff-appellant No.1. The plaintiffs alleged that suit land measuring 72 kanals 13 marlas was ancestral in the hands of Bishan Singh. The plaintiffs constituted Joint Hindu family with Bishan Singh and, therefore, the plaintiffs acquired 1/3rd share each in the suit land by birth. Bishan Singh executed Will dated 03.05.1960 in favour of RSA No.593 of 2010(O & M) -3- his wife Nand Kaur. The plaintiffs filed suit to challenge the said Will under Section 6 of the Punjab Custom (Power to Contest) Act, 1920 (in short, the Custom Act) alleging the suit land to be ancestral property and alleging that Bishan Singh had no right to execute the said Will. The said suit was decreed partly vide judgment and decree dated 30.04.1970 holding the plaintiffs to be entitled 2/7th share of the suit land, the remaining 5/7th share being of the four daughters and widow of Bishan Singh. However, the Custom Act was repealed and accordingly appeal against judgment and decree dated 30.04.1970 of the trial Court was allowed by District Judge, Ropar vide judgment and decree dated 24.08.1973 and the aforesaid earlier suit filed by the plaintiffs was dismissed. The plaintiffs now alleged that even if Will in favour of Nand Kaur is held to be valid qua 1/3rd share of Bishan Singh, even then plaintiffs have 2/3rd share in the suit land. Accordingly, the plaintiffs sought possession of 2/3rd share of the suit land being owners thereof. Defendants inter alia pleaded that the instant suit is barred by res judicata in view of judgment dated 24.08.1973 passed in the earlier suit. The suit was also alleged to be time barred. It was also alleged that defendants are in possession of the suit land since the year 1965, having purchased it on the basis of agreement to sell executed by Bishan Singh as well as Nand Kaur and on the basis of decree passed by learned District Judge, Ropar in the year 1983 for specific performance of the agreement. Plaint averments were controverted. Learned Civil Judge (Junior Division), Kharar vide judgment and decree dated 27.09.2005 dismissed the plaintiffs' suit. RSA No.593 of 2010(O & M) -4- First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Rupnagar vide judgment and decree dated

06.09.2007. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Admittedly earlier suit filed by the plaintiffs under Section 6 of the Custom Act was dismissed in first appeal vide judgment and decree dated 24.08.1973 which had attained finality. The plaintiffs' claim that they were owners of the suit land was negatived in that suit. Consequently, the plaintiffs now in subsequent suit instituted on

19.08.1997 i.e 24 years after the dismissal of their earlier suit cannot claim to be owners of the suit land. Their claim in this regard is categorically barred by res judicata. Learned counsel for the appellant contended that in the earlier suit, challenge to the Will was under the Custom Act and not on the basis of Joint Hindu Family Property. However, the plaintiffs could have raised all the pleas in the earlier suit including the plea of the suit land being Joint Hindu Family Property. If the plaintiffs did not take this plea in the earlier suit, nevertheless, the instant suit would stand barred by principle of constructive res judicata. The plaintiffs' claim in the earlier suit was negatived in the year 1973. The instant suit was filed on 19.08.1997 i.e after 24 years. The defendants are in possession of the suit land since the year 1965. Consequently, the suit is also hopelessly barred by limitation. In addition to the aforesaid, it has been observed in paragraph 24 of the judgment of the trial Court that it is admitted fact RSA No.593 of 2010(O & M) -5- that sale deed has been executed in favour of defendants pursuant to decree passed in suit for specific performance of the agreement to sell. Similar observation has also been made by the lower appellate Court that sale deed has been executed in favour of the defendants on the basis of judgment passed in suit for specific performance of the agreement to sell. The present plaintiffs were party to the said suit. For this reason as well, the plaintiffs cannot succeed in the instant suit. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Concurrent finding by both the Courts below against the plaintiffs- appellants is justified by material on record and is supported by detailed cogent reasons recorded by the Courts below. The appeal is accordingly dismissed in limine.

08.09.2010. A. Kaundal ( L. N. MITTAL ) JUDGE