Santokh Singh (Died) Through Lrs and Others Vs. Jagjit Singh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1132195
CourtPunjab and Haryana High Court
Decided OnFeb-11-2014
AppellantSantokh Singh (Died) Through Lrs and Others
RespondentJagjit Singh and Others
Excerpt:
-1- rs.no.1629 of 1987 in the high court of punjab and haryana at chandigarh rs.no.1629 of 1987 date of decision: 11.02.2014 santokh singh (died) through lrs and others ....appellants versus jagjit singh and others ....respondents coram: hon'ble mr.justice paramjeet singh1 whether reporters of the local papers may be allowed to see the judgment ?. 2) to be referred to the reporters or not ?. 3) whether the judgment should be reported in the digest ?. present: - mr.ashwani talwar, advocate, for the appellants. mr.vijay lath, advocate, for respondent no.1. mr.b.s.saini, advocate, for respondents no.3 to 5. ***** paramjeet singh, j. this is defendants' second appeal against the judgment and decree dated 13.12.1986 passed by learned additional district judge, patiala, whereby the appeal preferred by the plaintiffs against the judgment and decree dated 05.06.1985 passed by learned sub judge ii class, rajpura, whereby the suit of the plaintiffs for declaration was dismissed, has been accepted and the suit of the plaintiffs has been decreed. for convenience sake, reference to parties is being made as per their status in the civil suit. the detailed facts of the case are already recapitulated in the singh ravinder 2014.03.10 13:11 i attest to the accuracy and integrity of this document chandigarh -2- rs.no.1629 of 1987 judgments of the courts below and are not required to be reproduced. however, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for declaration that their fathers nikka singh and bant singh and defendants no.4 and 5 along with their branches, including plaintiffs, were entitled to 9/48th share each in the land measuring 24 bighas and 13 biswas, fully described in the headnote of the plaint and judgment and decree dated 26.09.1980 passed by district judge, patiala, is ineffective and is not binding upon the rights of the plaintiffs qua the disputed property. it was pleaded that disputed land was inherited by hira singh, grandfather of the plaintiffs, from his father narain singh and was coparcenary property of the parties to suit. it was further pleaded that hira singh died on 30.04.1976 leaving behind defendants no.1 to 5 his sons. defendants no.1 to 5 were entitled to inherit 9/48th share each while defendants no.6 to 8 were entitled to 1/48th share each. defendants no.2 and 3 earlier filed a suit against defendants no.1 and 4 to 8 for joint possession of 2/8th share each in the disputed land which was decreed by the district judge, patiala, on 26.09.1980. but the plaintiffs claiming their right by birth in the coparcenary property pleaded further that they were not bound by the said decree as they were not made party to the said suit. according to the plaintiffs, the inheritance was to devolve by way of survivorship and not by succession. consequently, plaintiffs along with their fathers are entitled to 9/48th share each. upon notice, defendants no.4, 5 and 8 did not oppose the suit singh ravinder 2014.03.10 13:11 i attest to the accuracy and integrity of this document chandigarh -3- rs.no.1629 of 1987 but defendants no.1 to 3, 6, 7, 9 and 11 to 15 contested the suit inter alia pleading that suit land was not coparcenary property, therefore, plaintiffs had got no right in it. it was further pleaded that plaintiffs can claim right, if any, in the property through their fathers.therefore, earlier judgment was binding upon them. replication was filed by the plaintiffs denying the averments in the written statement and reiterating the averments in the plaint. court of firs.instance, on the basis of pleadings of the parties, framed following issues: - “1. whether the land in dispute is the coparcenary property of the plaintiff and defendants no.1 to 5?. opp2 whether the plaintiffs alongwith defendants no.1 to 5 are entitled to 9/48 share each in the suit land?. opp3 whether the judgment and decree dated 16.9.80 is not binding on the plaintiffs?. opp4 whether the plaintiffs have locus standi to file the present suit?. opp5 whether the suit is properly valued for purpose of court fee and jurisdiction?. opp6 whether the defendants are entitled to compensatory costs under section 35-a of c.p.c.?. opd7 relief.”. parties led their respective evidence. the court of firs.instance, after appreciating evidence on record dismissed the suit of the plaintiffs. against the judgment and decree of the court of firs.instance, appeal preferred by the plaintiffs has been accepted, the judgment and singh ravinder 2014.03.10 13:11 i attest to the accuracy and integrity of this document chandigarh -4- rs.no.1629 of 1987 decree of the court of firs.instance has been reversed and suit of the plaintiffs has been decreed by lower appellate court. hence this regular second appeal. i have heard learned counsel for the parties and perused the record. at the time of admission no substantial question of law was framed, however, during the pendency of the appeal following substantial questions of law have been placed on record: - “1. whether the earlier judgment and decree dated 26.09.1980 of district judge, patiala, which was upheld till hon'ble supreme court is binding on the parties to the lis?. 2. whether the sons and daughters of late hira singh, who died intestate, shall inherit the property in equal shares?. 3. whether the judgment and decree dated 13.12.1986 of additional district judge, patiala is pervers.and not based upon the evidence brought on record and is thus, liable to be set aside and order of the trial court are liable to be affirmed?.”. learned counsel for the appellants vehemently contended that there was a litigation regarding the same very property between the parties. plaintiffs have stepped into the shoes of their fathers.as such they cannot be treated as new party. they will only come under the line of their fathers.once their fathers have contested the suit in the previous litigation, the judgment in that suit is binding upon the plaintiffs. singh ravinder 2014.03.10 13:11 i attest to the accuracy and integrity of this document chandigarh -5- rs.no.1629 of 1987 learned counsel for the respondents contended that the inheritance was to be by way of survivorship and not by succession, therefore, the plaintiffs should have been impleaded as party in the previous litigation. the lower appellate court has rightly decreed the suit of the plaintiffs. i have considered the contentions of the learned counsel for the parties. from the arguments of the learned counsel for the parties, this court finds that following substantial question of law arises for consideration in this appeal: - “whether the judgment and decree dated 26.09.1980 passed by learned district judge, patiala, has become final and is binding upon the parties to the lis?.”. the property in question inherited by hira singh will firstly devolve upon the sons/legal heirs of hira singh and grandsons will claim their right only through their fathers.perusal of copy of judgment dated 26.09.1980 ex.p3 shows that shares of lrs of hira singh, whatsoever, have been decided in that case, even the slp has been dismissed by the hon'ble supreme court. the said slp was filed by the father of the plaintiffs. once the proceedings have become final between the heirs of hira singh then the claim of grandsons, if any, will be only through their fathers.as such the judgment dated 26.09.1980 is binding not only upon the parties in that litigation but even to their privies. the judgment dated 26.09.1980 will also operate as constructive res judicata. plaintiffs are singh ravinder 2014.03.10 13:11 i attest to the accuracy and integrity of this document chandigarh -6- rs.no.1629 of 1987 claiming through defendants no.4 and 5 as their legal heirs and they are bound by the judgment in the previous litigation between the parties. plaintiffs have no independent right to claim any share in disputed property. whatsoever share they have got, they have got from their fathers.in view of above, substantial question of law is answered in affirmative. appeal is allowed. judgment and decree of the lower appellate court is set aside and the judgment and decree of the court of firs.instance is restored. decree sheet be prepared. no order as to costs. (paramjeet singh) judge february 11, 2014 r.s.singh ravinder 2014.03.10 13:11 i attest to the accuracy and integrity of this document chandigarh
Judgment:

-1- Rs.No.1629 of 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.1629 of 1987 Date of decision: 11.02.2014 Santokh Singh (died) through LRs and others ....Appellants Versus Jagjit Singh and others ....Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment ?.

2) To be referred to the Reporters or not ?.

3) Whether the judgment should be reported in the Digest ?.

Present: - Mr.Ashwani Talwar, Advocate, for the appellants.

Mr.Vijay Lath, Advocate, for respondent No.1.

Mr.B.S.Saini, Advocate, for respondents No.3 to 5.

***** PARAMJEET SINGH, J.

This is defendants' second appeal against the judgment and decree dated 13.12.1986 passed by learned Additional District Judge, Patiala, whereby the appeal preferred by the plaintiffs against the judgment and decree dated 05.06.1985 passed by learned Sub Judge II Class, Rajpura, whereby the suit of the plaintiffs for declaration was dismissed, has been accepted and the suit of the plaintiffs has been decreed.

For convenience sake, reference to parties is being made as per their status in the civil suit.

The detailed facts of the case are already recapitulated in the Singh Ravinder 2014.03.10 13:11 I attest to the accuracy and integrity of this document Chandigarh -2- Rs.No.1629 of 1987 judgments of the Courts below and are not required to be reproduced.

However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for declaration that their fathers Nikka Singh and Bant Singh and defendants No.4 and 5 along with their branches, including plaintiffs, were entitled to 9/48th share each in the land measuring 24 bighas and 13 biswas, fully described in the headnote of the plaint and judgment and decree dated 26.09.1980 passed by District Judge, Patiala, is ineffective and is not binding upon the rights of the plaintiffs qua the disputed property.

It was pleaded that disputed land was inherited by Hira Singh, grandfather of the plaintiffs, from his father Narain Singh and was coparcenary property of the parties to suit.

It was further pleaded that Hira Singh died on 30.04.1976 leaving behind defendants No.1 to 5 his sons.

Defendants No.1 to 5 were entitled to inherit 9/48th share each while defendants No.6 to 8 were entitled to 1/48th share each.

Defendants No.2 and 3 earlier filed a suit against defendants No.1 and 4 to 8 for joint possession of 2/8th share each in the disputed land which was decreed by the District Judge, Patiala, on 26.09.1980.

But the plaintiffs claiming their right by birth in the coparcenary property pleaded further that they were not bound by the said decree as they were not made party to the said suit.

According to the plaintiffs, the inheritance was to devolve by way of survivorship and not by succession.

Consequently, plaintiffs along with their fathers are entitled to 9/48th share each.

Upon notice, defendants No.4, 5 and 8 did not oppose the suit Singh Ravinder 2014.03.10 13:11 I attest to the accuracy and integrity of this document Chandigarh -3- Rs.No.1629 of 1987 but defendants No.1 to 3, 6, 7, 9 and 11 to 15 contested the suit inter alia pleading that suit land was not coparcenary property, therefore, plaintiffs had got no right in it.

It was further pleaded that plaintiffs can claim right, if any, in the property through their fatheRs.therefore, earlier judgment was binding upon them.

Replication was filed by the plaintiffs denying the averments in the written statement and reiterating the averments in the plaint.

Court of fiRs.instance, on the basis of pleadings of the parties, framed following issues: - “1.

Whether the land in dispute is the coparcenary property of the plaintiff and defendants No.1 to 5?.

OPP2 Whether the plaintiffs alongwith defendants No.1 to 5 are entitled to 9/48 share each in the suit land?.

OPP3 Whether the judgment and decree dated 16.9.80 is not binding on the plaintiffs?.

OPP4 Whether the plaintiffs have locus standi to file the present suit?.

OPP5 Whether the suit is properly valued for purpose of court fee and jurisdiction?.

OPP6 Whether the defendants are entitled to compensatory costs under Section 35-A of C.P.C.?.

OPD7 Relief.”

.

Parties led their respective evidence.

The Court of fiRs.instance, after appreciating evidence on record dismissed the suit of the plaintiffs.

Against the judgment and decree of the Court of fiRs.instance, appeal preferred by the plaintiffs has been accepted, the judgment and Singh Ravinder 2014.03.10 13:11 I attest to the accuracy and integrity of this document Chandigarh -4- Rs.No.1629 of 1987 decree of the Court of fiRs.instance has been reversed and suit of the plaintiffs has been decreed by lower appellate Court.

Hence this regular second appeal.

I have heard learned counsel for the parties and perused the record.

At the time of admission no substantial question of law was framed, however, during the pendency of the appeal following substantial questions of law have been placed on record: - “1.

Whether the earlier judgment and decree dated 26.09.1980 of District Judge, Patiala, which was upheld till Hon'ble Supreme Court is binding on the parties to the lis?.

2.

Whether the sons and daughters of Late Hira Singh, who died intestate, shall inherit the property in equal shares?.

3.

Whether the judgment and decree dated 13.12.1986 of Additional District Judge, Patiala is perveRs.and not based upon the evidence brought on record and is thus, liable to be set aside and order of the trial court are liable to be affirmed?.”.

Learned counsel for the appellants vehemently contended that there was a litigation regarding the same very property between the parties.

Plaintiffs have stepped into the shoes of their fatheRs.as such they cannot be treated as new party.

They will only come under the line of their fatheRs.Once their fathers have contested the suit in the previous litigation, the judgment in that suit is binding upon the plaintiffs.

Singh Ravinder 2014.03.10 13:11 I attest to the accuracy and integrity of this document Chandigarh -5- Rs.No.1629 of 1987 Learned counsel for the respondents contended that the inheritance was to be by way of survivorship and not by succession, therefore, the plaintiffs should have been impleaded as party in the previous litigation.

The lower appellate court has rightly decreed the suit of the plaintiffs.

I have considered the contentions of the learned counsel for the parties.

From the arguments of the learned counsel for the parties, this Court finds that following substantial question of law arises for consideration in this appeal: - “Whether the judgment and decree dated 26.09.1980 passed by learned District Judge, Patiala, has become final and is binding upon the parties to the lis?.”.

The property in question inherited by Hira Singh will firstly devolve upon the sons/legal heirs of Hira Singh and grandsons will claim their right only through their fatheRs.Perusal of copy of judgment dated 26.09.1980 Ex.P3 shows that shares of LRs of Hira Singh, whatsoever, have been decided in that case, even the SLP has been dismissed by the Hon'ble Supreme Court.

The said SLP was filed by the father of the plaintiffs.

Once the proceedings have become final between the heirs of Hira Singh then the claim of grandsons, if any, will be only through their fatheRs.as such the judgment dated 26.09.1980 is binding not only upon the parties in that litigation but even to their privies.

The judgment dated 26.09.1980 will also operate as constructive res judicata.

Plaintiffs are Singh Ravinder 2014.03.10 13:11 I attest to the accuracy and integrity of this document Chandigarh -6- Rs.No.1629 of 1987 claiming through defendants No.4 and 5 as their legal heirs and they are bound by the judgment in the previous litigation between the parties.

Plaintiffs have no independent right to claim any share in disputed property.

Whatsoever share they have got, they have got from their fatheRs.In view of above, substantial question of law is answered in affirmative.

Appeal is allowed.

Judgment and decree of the lower appellate Court is set aside and the judgment and decree of the Court of fiRs.instance is restored.

Decree sheet be prepared.

No order as to costs.

(Paramjeet Singh) Judge February 11, 2014 R.S.Singh Ravinder 2014.03.10 13:11 I attest to the accuracy and integrity of this document Chandigarh