Bijender Singh and Others Vs. Chand Singh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1127616
CourtPunjab and Haryana High Court
Decided OnFeb-11-2014
AppellantBijender Singh and Others
RespondentChand Singh and Others
Excerpt:
in the high court of punjab and haryana at chandigarh rs.no.1604 of 2013 (o&m) date of decision: 11th february, 2014 bijender singh and others appellants versus chand singh and others respondents coram: hon’ble mr.justice rakesh kumar garg1 whether reporters of local newspapers may be allowed to see the judgment?. 2. whether to be referred to the reporters or not?. 3. whether the judgment should be reported in the digest?. present: mr.kulvir narwal, advocate for the appellants. rakesh kumar garg, j. (oral) cm no.4257-c of 2013 for the reasons mentioned in the application, which is supported by an affidavit, delay of 39 days in re-filing the appeal is condoned. the application stands disposed of. cm no.4259-c of 2013 for the reasons mentioned in the application, which is supported by an affidavit, delay of 40 days in filing the appeal is condoned. the application stands disposed of. singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court rs.no.1604 of 2013 (o&m) 2 rs.no.1604 of 2013 (o&m) this is plaintiffs’ second appeal challenging the judgments and decrees of the courts below whereby their suit for possession by way of partition and consequential relief of permanent injunction was dismissed by the trial court and their appeal filed against the aforesaid judgment and decree of the trial court was also dismissed by the firs.appellate court. according to the appellants, manohar lal son of hazari was the absolute owner of the property, which was a part of rectangle no.36, killa no.17/1 in the revenue estate of village kutana, tehsil and district rohtak, as detailed in the plaint. said manohar lal died on 01.07.1988 and after his death, his estate was succeeded by his four children, namely, chand singh, karan singh, dhanpati and parsani, to the extent of 1/4th share each. karan singh son of manohar lal died intestate on 26.11.1989 and after his death his 1/4th share was inherited and succeeded by the plaintiffs along with defendant no.8 azad singh (now respondent no.13).and thus, all of them were owners in possession to the extent of 1/28th share in the disputed property. it was further averred that manohar lal was the absolute owner of the suit property but chand singh defendant no.1 had illegally set up a judgment and decree dated 21.08.1982 passed in civil suit no.374/1 of 16.07.1982 titled as ‘chand singh v. manohar lal’ and on the basis of this decree, defendant no.1 was claiming title to whole of the suit singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court rs.no.1604 of 2013 (o&m) 3 property and defendant no.4 was claiming himself to be the transferee of defendant no.1 on the basis of registered sale deed no.3245 dated 28.08.2003 and defendants no.5 to 7 were further claiming themselves to be the transferees on the basis of sale deeds dated 03.06.2005. it was stated that the aforesaid decree and the sale deeds are illegal and not binding upon their rights as no family settlement had taken place in the year 1982 and before that chand singh had no pre-existing right in the suit property nor was the alleged decree dated 21.08.1982 registered. further, no summons were issued in respect of the said suit filed by defendant no.1 against manohar lal nor he engaged any lawyer or thumb marked or signed any written statement or power of attorney in respect of civil suit because he never appeared in the court. manohar lal was the absolute owner till his death and after his death the property was inherited by his four children and after the death of karan singh, the property to the extent of his share was inherited by the appellants along with defendant no.8. since the defendants refused to accept their claim, necessity arose to file the instant suit for partition. in the separate joint written statement filed by defendants no.1 and 4 to 7, various preliminary objections were raised. however, on merits, it was averred that manohar lal was not the absolute owner of the disputed property but it was a joint hindu family property in his hands. defendant no.1 was declared owner of the disputed property by way of judgment and decree dated 21.08.1982, and thus, the disputed property was never inherited by karan singh or his legal singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court rs.no.1604 of 2013 (o&m) 4 representatives and on the basis of his title, defendant no.1 had sold the property to defendants no.4 and 5. defendants no.4 and 5 have further taken a defence of bonafide purchaser. it was further averred that manohar lal got constructed the shops and verandah over the suit property measuring 60 square yards after getting the site plan sanctioned from the municipal committee, rohtak in the year 1959 and later-on a family settlement was arrived between the family members.which was confirmed by the decree dated 21.08.1982. it was averred that manohar lal had sold his share in killa no.36/17/1 except the suit property, which is 60 square yards, however the purchasers did not get the mutation entered and sanctioned in their favour, so the revenue record still stands in the name of manohar lal and after his death in the name of his children; however, name of defendant no.1 was substituted in the municipal record after the judgment and decree dated 21.08.1982. it was further averred that in the family settlement, late karan singh was given 325 square yards land/area, which is situated near the suit land across the road over which late manohar lal and other co-sharers have carved out plots and residential houses where the present plaintiffs along with defendant no.8 are residing; whereas chand singh was given the land along with suit property at village bohar and thus, a family settlement had taken place between the parties. it was further averred that the judgment and decree is not illegal because defendant no.1 had a pre-existing right in the suit property, and thus, the decree does not require registration. it was singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court rs.no.1604 of 2013 (o&m) 5 further averred that manohar lal had himself appeared in the court and had given a statement on the basis of which the suit property was decreed in favour of defendant no.1. rest of the averments were denied and dismissal of the suit was prayed for. defendants no.2 and 3 filed a separate written statement which was also exactly on the similar lines as that the written statement filed by the remaining defendants. defendant no.8 appeared in person and had given a statement in favour of defendant no.1 that the decree was suffered by his grandfather in the year 1982 in favour of chand singh, his uncle, and 325 square yards land in front of the suit property was given to his deceased father on which he along with other plaintiffs had constructed their houses and they have no concern with the suit property and he does not want to contest the present suit. after hearing learned counsel for the parties and perusing the material placed on record, the trial court vide its judgment and decree dated 07.01.2009 dismissed the suit of the plaintiff-appellants. feeling aggrieved from the aforesaid judgment and decree of the trial court, the plaintiffs filed an appeal, which was also dismissed by the firs.appellate court vide its judgment and decree dated 14.01.2012. while affirming the findings of the trial court, the firs.appellate court held that defendant no.8 azad singh, who is the brother of plaintiffs, had appeared in the court and had made a statement in favour of defendant no.1 to the effect that the decree in singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court rs.no.1604 of 2013 (o&m) 6 question was suffered by his grandfather in favour of chand singh and the land measuring 325 square yards in front of the suit property was given to his deceased father on which he and other plaintiffs have constructed their houses and they have no concern with the suit land. the lower appellate court further found that pw-4 had appeared in the witness box and had stated that there are three shops on the disputed plot which are in possession of the persons who purchased the land from chand singh. he had also not denied execution of the decree. plaintiff bijender, while appearing in the witness box as pw-7, had stated in his cross-examination that his father manohar lal along with others had purchased 24 acres of land, out of which the disputed property remains and it belongs to manohar lal. he also admitted the construction of shops on the same. he further admitted that the shops were demolished in floods in the year 1995 and compensation was paid to defendant no.1 chand singh. he further admitted that they have constructed their houses on plots no.30, 31 and 32, the sale deed of which was executed by their grandfather manohar lal. he also admitted that the witnesses have disclosed to him about the decree of 1982. during his evidence, pw-6 nafe singh also admitted that he and the plaintiffs had the knowledge of the decree before 1990. the lower appellate court further found that though fraud was pleaded, however no evidence was brought on record to prove the aforesaid fraud. in view of the aforesaid findings of the lower appellate court which are supported by evidence on record, learned counsel for the singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court rs.no.1604 of 2013 (o&m) 7 appellants has failed to make out any case before this court. in view thereof, this court is of the opinion that there is no misreading of evidence and the findings recorded by both the courts below do not suffer from perversity. thus, no substantial question of law arises in this appeal. dismissed. (rakesh kumar garg) judge february 11, 2014 rps singh rattan pal 2014.02.19 13:51 i attest to the accuracy and integrity of this document punjab & haryana high court
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.1604 of 2013 (O&M) Date of decision: 11th February, 2014 Bijender Singh and others Appellants Versus Chand Singh and others Respondents CORAM: HON’BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether Reporters of Local Newspapers may be allowed to see the judgment?.

2.

Whether to be referred to the Reporters or not?.

3.

Whether the judgment should be reported in the Digest?.

Present: Mr.Kulvir Narwal, Advocate for the appellants.

RAKESH KUMAR GARG, J.

(ORAL) CM No.4257-C of 2013 For the reasons mentioned in the application, which is supported by an affidavit, delay of 39 days in re-filing the appeal is condoned.

The application stands disposed of.

CM No.4259-C of 2013 For the reasons mentioned in the application, which is supported by an affidavit, delay of 40 days in filing the appeal is condoned.

The application stands disposed of.

Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1604 of 2013 (O&M) 2 Rs.No.1604 of 2013 (O&M) This is plaintiffs’ second appeal challenging the judgments and decrees of the Courts below whereby their suit for possession by way of partition and consequential relief of permanent injunction was dismissed by the trial Court and their appeal filed against the aforesaid judgment and decree of the trial Court was also dismissed by the fiRs.appellate Court.

According to the appellants, Manohar Lal son of Hazari was the absolute owner of the property, which was a part of Rectangle No.36, Killa No.17/1 in the revenue estate of village Kutana, Tehsil and District Rohtak, as detailed in the plaint.

Said Manohar Lal died on 01.07.1988 and after his death, his estate was succeeded by his four children, namely, Chand Singh, Karan Singh, Dhanpati and Parsani, to the extent of 1/4th share each.

Karan Singh son of Manohar Lal died intestate on 26.11.1989 and after his death his 1/4th share was inherited and succeeded by the plaintiffs along with defendant No.8 Azad Singh (now respondent No.13).and thus, all of them were owners in possession to the extent of 1/28th share in the disputed property.

It was further averred that Manohar Lal was the absolute owner of the suit property but Chand Singh defendant No.1 had illegally set up a judgment and decree dated 21.08.1982 passed in Civil Suit No.374/1 of 16.07.1982 titled as ‘Chand Singh v.

Manohar Lal’ and on the basis of this decree, defendant No.1 was claiming title to whole of the suit Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1604 of 2013 (O&M) 3 property and defendant No.4 was claiming himself to be the transferee of defendant No.1 on the basis of registered sale deed No.3245 dated 28.08.2003 and defendants No.5 to 7 were further claiming themselves to be the transferees on the basis of sale deeds dated 03.06.2005.

It was stated that the aforesaid decree and the sale deeds are illegal and not binding upon their rights as no family settlement had taken place in the year 1982 and before that Chand Singh had no pre-existing right in the suit property nor was the alleged decree dated 21.08.1982 registered.

Further, no summons were issued in respect of the said suit filed by defendant No.1 against Manohar Lal nor he engaged any lawyer or thumb marked or signed any written statement or power of attorney in respect of Civil Suit because he never appeared in the Court.

Manohar Lal was the absolute owner till his death and after his death the property was inherited by his four children and after the death of Karan Singh, the property to the extent of his share was inherited by the appellants along with defendant No.8.

Since the defendants refused to accept their claim, necessity arose to file the instant suit for partition.

In the separate joint written statement filed by defendants No.1 and 4 to 7, various preliminary objections were raised.

However, on merits, it was averred that Manohar Lal was not the absolute owner of the disputed property but it was a Joint Hindu Family property in his hands.

Defendant No.1 was declared owner of the disputed property by way of judgment and decree dated 21.08.1982, and thus, the disputed property was never inherited by Karan Singh or his Legal Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1604 of 2013 (O&M) 4 Representatives and on the basis of his title, defendant No.1 had sold the property to defendants No.4 and 5.

Defendants No.4 and 5 have further taken a defence of bonafide purchaser.

It was further averred that Manohar Lal got constructed the shops and verandah over the suit property measuring 60 square yards after getting the site plan sanctioned from the Municipal Committee, Rohtak in the year 1959 and later-on a family settlement was arrived between the family membeRs.which was confirmed by the decree dated 21.08.1982.

It was averred that Manohar Lal had sold his share in Killa No.36/17/1 except the suit property, which is 60 square yards, however the purchasers did not get the mutation entered and sanctioned in their favour, so the revenue record still stands in the name of Manohar Lal and after his death in the name of his children; however, name of defendant No.1 was substituted in the municipal record after the judgment and decree dated 21.08.1982.

It was further averred that in the family settlement, late Karan Singh was given 325 square yards land/area, which is situated near the suit land across the road over which late Manohar Lal and other co-sharers have carved out plots and residential houses where the present plaintiffs along with defendant No.8 are residing; whereas Chand Singh was given the land along with suit property at Village Bohar and thus, a family settlement had taken place between the parties.

It was further averred that the judgment and decree is not illegal because defendant No.1 had a pre-existing right in the suit property, and thus, the decree does not require registration.

It was Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1604 of 2013 (O&M) 5 further averred that Manohar Lal had himself appeared in the Court and had given a statement on the basis of which the suit property was decreed in favour of defendant No.1.

Rest of the averments were denied and dismissal of the suit was prayed for.

Defendants No.2 and 3 filed a separate written statement which was also exactly on the similar lines as that the written statement filed by the remaining defendants.

Defendant No.8 appeared in person and had given a statement in favour of defendant No.1 that the decree was suffered by his grandfather in the year 1982 in favour of Chand Singh, his uncle, and 325 square yards land in front of the suit property was given to his deceased father on which he along with other plaintiffs had constructed their houses and they have no concern with the suit property and he does not want to contest the present suit.

After hearing learned counsel for the parties and perusing the material placed on record, the trial Court vide its judgment and decree dated 07.01.2009 dismissed the suit of the plaintiff-appellants.

Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiffs filed an appeal, which was also dismissed by the fiRs.appellate Court vide its judgment and decree dated 14.01.2012.

While affirming the findings of the trial Court, the fiRs.appellate Court held that defendant No.8 Azad Singh, who is the brother of plaintiffs, had appeared in the Court and had made a statement in favour of defendant No.1 to the effect that the decree in Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1604 of 2013 (O&M) 6 question was suffered by his grandfather in favour of Chand Singh and the land measuring 325 square yards in front of the suit property was given to his deceased father on which he and other plaintiffs have constructed their houses and they have no concern with the suit land.

The lower appellate Court further found that PW-4 had appeared in the witness box and had stated that there are three shops on the disputed plot which are in possession of the persons who purchased the land from Chand Singh.

He had also not denied execution of the decree.

Plaintiff Bijender, while appearing in the witness box as PW-7, had stated in his cross-examination that his father Manohar Lal along with others had purchased 24 acres of land, out of which the disputed property remains and it belongs to Manohar Lal.

He also admitted the construction of shops on the same.

He further admitted that the shops were demolished in floods in the year 1995 and compensation was paid to defendant No.1 Chand Singh.

He further admitted that they have constructed their houses on plots No.30, 31 and 32, the sale deed of which was executed by their grandfather Manohar Lal.

He also admitted that the witnesses have disclosed to him about the decree of 1982.

During his evidence, PW-6 Nafe Singh also admitted that he and the plaintiffs had the knowledge of the decree before 1990.

The lower appellate Court further found that though fraud was pleaded, however no evidence was brought on record to prove the aforesaid fraud.

In view of the aforesaid findings of the lower appellate Court which are supported by evidence on record, learned counsel for the Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1604 of 2013 (O&M) 7 appellants has failed to make out any case before this Court.

In view thereof, this Court is of the opinion that there is no misreading of evidence and the findings recorded by both the courts below do not suffer from perversity.

Thus, no substantial question of law arises in this appeal.

Dismissed.

(RAKESH KUMAR GARG) JUDGE February 11, 2014 rps Singh Rattan Pal 2014.02.19 13:51 I attest to the accuracy and integrity of this document Punjab & Haryana High Court