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Sukhdev Singh & Another v. Gurdev Singh (dead) through L.Rs

Sukhdev Singh & Another
v.
Gurdev Singh (dead) through L.Rs

(High Court Of Punjab And Haryana)

Regular Second Appeal No. 2249 of 1991 (O and M) | 16-02-2010


VINOD K. SHARMA, J. (ORAL)

This is defendant / appellants appeal against the judgment and decree dated 3.8.1991, passed by the learned Courts below, vide which the suit filed by the plaintiff / respondent for possession stands decreed. The plaintiff / respondent filed a suit for possession on the pleadings that Prem Singh alias Prem son of Hira was owner of the suit land, besides other properties. He was unmarried and used to reside at village Mardanpur, Tehsil Rajpura since beginning. The plaintiff / respondent used to serve him and also supply food etc. and also got him treated in case of illness. Out of love and affection Prem Singh executed a Will dated 3.2.1973 in favour of the plaintiff / respondent bequeathing all his properties in his favour. So, the plaintiff claimed to be owner in possession of the suit property as well as the properties left by Prem Singh in village Nawan Gaon and in village Mardanpur.

The case of the plaintiff was that defendant /appellants in connivance with the Patwari got entered mutation regarding the suit land in favour of defendants No.1 & 2 on the basis of Will, said to have been executed by Prem Singh in their favour. The mutation was said to be wrongly sanctioned in favour of defendants No.1 & 2 by the Assistant Collector, Naraingarh. The order sanctioning the mutation was challenged being illegal, wrong and having no effect on the rights of the plaintiff. The Will set up by the defendant / appellants was challenged by alleging that Prem Singh had never executed any Will in favour of the appellants. The Will was said to be forged and fabricated document. The plaintiff further claimed that by taking advantage of his absence defendant / appellants took possession of the land, though they had no right or title to the suit land. The land in village Mardanpur was mutated in favour of the plaintiff. The case of the plaintiff was that, as the defendants refused to accept his claim, therefore, he filed a suit for possession of suit land.

In the written statement, the defendant / appellants admitted that Prem Singh was owner of the suit land besides other property of village Mardanpur. It was also admitted that he was unmarried. The other averments made in the plaint were controverted by pleading that Prem Singh mostly resided at village Nawan Gaon and he used to visit village Mardanpur some time to manage his property there.

The Will set up by the plaintiff was said to be a forged document and not executed by Prem Singh. The case of the defendant / appellants was that the plaintiff has no right or interest in the property left by Prem Singh. The defendant / appellants claimed their right to the suit land and other properties left by Prem Singh on the basis of Will dated 18.2.1973. It was also the case of the defendant / appellants that even otherwise they were only the legal heirs of the deceased under the Hindu Succession Act. The Will set up by the plaintiff was claimed to be illegal, null and void and not binding on the reversionary rights of the defendants. It was also asserted by the defendant / appellants that the land in the hands of Prem Singh was ancestral coparcenery property, therefore, he could not alienate the land without legal necessity. The case of the defendant / appellants was that the parties being Jat by caste were governed by agricultural custom under which the ancestral property could not be alienated or bequeathed except for consideration and legal necessity.

It was denied that the plaintiff ever served or lived with Prem Singh. The defendants claimed their relationship with Prem Singh on the basis of following pedigree table:-

Ram Bux

|

_________________________________

| |

Demak Punna

| |

Hira Sunder (defendant)

| |

Prem @ Prem Singh |

now deceased |

______ |_______

| |

Surjit Singh Sukhdev Singh

defendant defendant

It was the case of the defendant / appellants that the plaintiff was not related to the deceased, nor he has any right or title to the suit property. The defendants also claimed themselves to be the owner in possession of the land in dispute. It was also the case that litigation qua the land at village Mardanpur was pending before the Hon’ble Supreme Court. The mutation in favour of the plaintiff was said to be illegally sanctioned.

In the replication, the plaintiff / respondent reiterated the facts mentioned in the plaint and controverted those of the written statement. It was pleaded that the issue of Will in favour of plaintiff and defendants stood decided in the litigation regarding the land of village Mardanpur, wherein it was held that the Will in favour of the plaintiff was valid and genuine and Will set up by defendants was not genuine and, therefore, invalid. It was pleaded that dispute qua the validity of the Wills was hit by the principle of res judicata.

On the pleadings of the parties, the learned Trial Court framed the following issues:-

“1. Whether Prem Singh deceased executed a valid Will in favour of the plaintiff? OPP

2. If issue No.1 is proved whether the Will in favour of plaintiff was a forged and fabricated document and has no binding effect upon the parties? OPD

3. Whether Prem Singh deceased executed any valid Will in favour of the defendants? OPD

4. If issue No.3 is proved whether the alleged Will was forged and fabricated document having no binding effect upon the parties? OPD

5. Whether the defendants are natural heirs of the deceased Prem Singh; if so whether they are entitled to inherit the estate left by him? OPD

6. Whether the suit land was ancestral property in the hands of Prem Singh; if so to what effect? OPD

7. Whether the parties are governed by any custom if so what is the effect of that custom in this case?

7-A. Whether the judgment dated 8.3.1979 of S.J.II.C., Rajpura, affirmed in R.S.A. No. 1767/1981 dated 27.8.1984 operated as resjudicata between the parties, if so, to what effect upon the present suit?

8. Relief.

Issue No.7-A, was taken as main issue for decision. On the basis of documentary and oral evidence on record, the learned trial Court held that the parties in the previous litigation were the same and the issue regarding Wills set up by both the parties in both the suits was directly and substantially in issue in the previous suit, which attained finality unto the High Court.

In view of the fact that the appellant / defendants, though, claimed that the appeal against the judgment and decree of this Court was pending before the Hon’ble Supreme Court, but had led no evidence to prove that assertion.

The learned trial Court, therefore, held that the judgment and decree dated 8.3.1979 of the Sub Judge Ist Class, Rajpura, which was affirmed in the regular second appeal No. 1767 of 1981 dated 27.8.1984 operated as res judicata between the parties.

In view of the findings on issue No.7-A, the learned trial Court decided issues No.1 to 4 in favour of the plaintiff / respondent by holding that Prem Singh deceased executed a valid Will in favour of the plaintiff, by applying the principle of res judicata. It was also held that the property in dispute stood bequeathed to plaintiff / respondent by way of validly executed Will, which stood fully proved.

On issue No.6, it was held that the appellant / defendants failed to prove that the property in the hands of late Sh. Prem Singh was not ancestral coparcenary property. It was also held that the appellant / defendants failed to prove that the property was governed by agricultural custom, as alleged in view of the finding in the previous suit.

In appeal findings recorded by the learned trial Court were affirmed.

Mr. D.R. Mahajan, learned counsel appearing on behalf of the appellants contended that this appeal raises the following substantial questions of law:-

1. Whether the principle of resjudicata could be applied qua the property which did not fall within the jurisdiction of the Court which decided the previous suit?

2. Whether the property in the hands of Prem Singh was ancestral, therefore, governed by the agricultural custom?

In support of the first substantial question of law, the learned counsel for the appellant referred to Section 17 of the Code of Civil Procedure to contend, that the suit for immovable property can be filed in any Court within the local limits in whose jurisdiction the part of the property situated. The contention of the learned counsel for the appellants, therefore, was that as the learned Sub Judge, Ist Class, Rajpura did not have jurisdiction to adjudicate upon the property situated within the jurisdiction of Ambala, therefore, the finding of the leaned Sub Judge, Rajpura could not operate as res judicata in this case, therefore, it was necessary for the Court to have adjudicated upon the validity of the Wills set up by the parties.

On consideration, I find no force in the contention raised by the learned counsel for the appellants.

It is not in dispute, that the previous suit was filed by the defendant / appellants with regard to the property situated within the jurisdiction of court at Rajpura. The reading of Section 17 of the Code of Civil Procedure would show, that with respect to the claim regarding immovable property situated within the jurisdiction of different Courts, the suit can be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situated. Once it was held, that the part of the property left by late Sh. Prem Singh was situated in Rajpura, the Court at Rajpura, therefore had the jurisdiction to adjudicate upon the dispute between the parties and the judgment, therefore, would operate as res judicata. Rather it was a duty of the defendant / appellants to have included the property, now in dispute, also in the suit previously filed inter se between the parties. The contention of the learned counsel for the appellants, therefore, is misconceived. The first substantial question of law is, therefore, answered against the appellants.

On the second substantial question of law, the learned counsel for the appellants contended, that once it was conceded, that the parties were governed by the agricultural custom, under which ancestral property could not be alienated without legal necessity, Wills though proved could not vest any right in the plaintiff / respondent.

This plea again deserves to be rejected. The learned lower appellate Court rightly held that the sonless proprietor stands on a different footing. Late Sh. Prem Singh was admittedly sonless proprietor; therefore, he could gift away or bequeath his ancestral property in favour of a person who rendered services to him.

The learned trial Court on appreciation of evidence, also recorded a positive finding, that it was proved on record, that the plaintiff / respondent rendered services to deceased Prem Singh. The learned trial Court by relying upon the judgment of this Court in the case of Smt. Sham Kaur vs. Hari Singh and others, 1971, R.L.R. 318 also held, that the defendant / appellants had failed to prove, that property in the hands of late Sh. Prem Singh was ancestral. The learned trial Court also relied upon the judgment of the Honble Supreme Court in the case of Mara and others Vs. Mst. Nikko alias Panjab Kaur and another, AIR 1964 Supreme Court 1821, to hold that when the property i.e. the alleged ancestral and nonancestral property cannot be separated, then the entire property assumes the character of non-ancestral.

Advocates List

For the Appellants Mr. D.R. Mahajan, Advocate. For the Respondent Ms. G.K. Turka, Advocate.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE VINOD K. SHARMA

Eq Citation

LQ 2010 HC 5217