Dismissed

Randhir and Ors. v. Parsani Devi & Ors.

Punjab & Haryana HC5 Mar 2014RSA/940/2011

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by defendants against concurrent findings of lower courts. The suit by plaintiffs, claiming ownership based on a 1996 family settlement and a 1996 civil decree, was decreed with a permanent injunction. The appellate court held no error of law was committed and no substantial question of law arose.

What did the court decide?

Instant appeal stands dismissed with no order as to costs.

Randhir and Ors. Vs Parsani Devi & Ors. — Partition | Punjab & Haryana HC (2014)

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RSA No. 940 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

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RSA No. 940 OF 2011 (O&M) Date of Decision: 05.03.2014

Randhir and others

.....Appellants

Versus

Parsani Devi and others

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.....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. J.P. Dhull, Advocate for the appellants.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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Present appeal, at the instance of defendants, is directed against the concurrent findings of facts recorded by both the learned courts below, whereby the suit for declaration and permanent injunction filed by the plaintiffs-respondents, was decreed.

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In order to avoid repetition, facts of the case, as recorded by the learned Additional District Judge, Kaithal read as under:-

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“ The controversy if put in a narrow

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compass is that one Gugan son of Kalu was blessed with three sons namely Manga, Zile and

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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Hari Kishan. Hari Kishan expried on 29.12.1996 and the present appellants/defendants and performa respondents are sons and daughter of said Hari Kishan. Manga and Zile being plaintiffs filed the present suit for declaration that the mutation no 986 dated 30.10.2004 sanctioned by the Revenue Authorities regarding the estate of Hari Kishan in favour of present appellants is wrong and is illegal and in fact they are the owners of the suit land to the extent of 206/861 shares in suit land measuring 43 kanals 1 marla as fully described in para no.1 of the plaint and situated within the revenue estate of village Majra Nand Karan as per jamabandi for the year 2000-2001. The plaintiffs i.e. Present respondents claimed ownership over the land on the strength of a civil court decree dated 8.6.1996 passed in civil suit no. 805/1996 titled as Manga etc. Versus Hari Kishan by the court of Shri Jai Singh Jangra, the then learned civil Judge (Sr. Divn) Kaithal. It was maintained by the plaintiffs/respondents that at the time of suffering abovesaid decree, late Hari Kishan was owner to the extent of half share in the total land measuring 43 kanals 1 marlas i.e. 430.5/861 shares and after the passing of the decree, he was left with 224/861 shares in teh suit

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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land. However, after ignoring the judgment and decree dated 8.6.1996 as aforesaid, the revenue authorities sanctioned mutation No. 986 dated 30.10.2004 on the basis of inheritance in favour of defendants/appellants and the said mutation entries were stated to be illegal and wrong by maintaining that after passing of judgment and decree dated 8.6.1996 as aforesaid Hari Singh was left with only 224 shares in total suit land. It was also contended that jamabandi for the year 200001 was also containing wrong entries in the column of ownership. On the basis of wrongful entries in the revenue record, the present appellants were threatening to oust the plaintiffs/respondents from joint possession of the suit land and the same necessitate in filing of the present suit wherein declaration as aforesaid was sought and permanent restraint order was sought for restraining the present appellants from ousting the plaintiffs/respondents from the joint possession on the suit land.

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On notice being given, the suit was contested by defendants No. 3 and 4 only. The defence of present appellants No.1 and 2 was struck down by the learned trial court vide order dated 5.8.2005 and Smt. Om Pati had not filed any

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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written statement before the trial court and was ex parte before the trial court.

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In the written statement of defendants No. 3 and 4, it was set up that the plaintiffs/respondents had no locus standi to file the suit and the suit was time barred. The suit was started to be not maintainable and plea of estoppels was also raised against the plaintiffs/respondents. The suit was stated to be without cause of action and not properly valued for the purposes of court fees and jurisdiction. Inter alia it was pleaded by the contesting defendants that the plaintiffs/respondents had concealed true and material facts from the court and in fact father of the present defendant and plaintiffs were real brothers and in the year 1996 a family settlement was arrived at between the plaintiffs/respondents and father of the defendants namely Hari Kishan. As per family settlement Hari Kishan was to transfer land measuring 10 kanals 6 marlas out of suit land in favour of plaintiffs but without effecting any transfer Hari Kishan expired on 29.12.1996. After the death of Hari Kishan, the plaintiffs/respondents called the defendants to transfer the land measuring 10 kanals 6 marlas out of suit land in favour of respondents being legal

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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heirs of Hari Kishan but the defendants apprised the plaintiffs that they will transfer the land measuring 10 kanals 6 marlas after the mutation is sanctioned in their favour. The mutation No. 986 was sanctioned on 30.10.2004 and after sanctioning of the mutation the defendants transferred the land measuring 10 kanals 6 marlas in favour of plaintiffs as per family settlement between the plaintiffs/respondents and deceased Hari Kishan vide Tamleek Nama (settlement deed) No. 7918 dated 15.2.2005 in equal shares and mutation No. 992 was also sanctioned in favour of plaintiffs/respondents on the basis of Tamleek Nama (settlement deed). The defendants also pointed out that Hari Kishan had not suffered any decree in favour of plaintiffs/respondents during his life time and if any such decree is produced by the respondents, the same is false, frivolous and result of fraud and not binding on the rights of defendants/appellants. A prayer was made for dismissal of the suit.”

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On the basis of amended pleadings of the parties, learned trial court framed the following issues:-

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“1. Whether the plaintiffs are the owners in joint possession of the land measuring 10 kanals 6 marlas as alleged?OPP

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RSA No. 940 of 2011

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2. Whether the defendants are liable to be restrained from interfering in their possession over the suit land?OPP

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3. Whether the plaintiffs have no locus standi and or cause of action to file this suit?OPD

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4. Whether the suit is barred by time?OPD

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5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD

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6. Relief ”

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With a view to prove their respective stands taken, both the parties led their evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiffs have proved their case. Consequently, suit was decreed vide impugned judgment and decree dated 30.7.2009. Feeling aggrieved, defendants filed their first appeal which also came to be dismissed by the learned Additional District Judge, vide his impugned judgment and decree dated 4.8.2010. Hence this second appeal at the hands of the defendants.

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Learned counsel for the appellants submits that learned courts below have failed to appreciate the true facts of the case, in the correct perspective. He further submits that neither the suit was maintainable nor the plaintiffs have any locus standi to file the present suit. However, since both the learned courts below proceeded on a wholly misconceived approach, while passing the impugned judgments and decrees, the same were not sustainable in Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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law. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.

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Having heard the learned counsel for the appellants at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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A combined reading of the impugned judgments and decrees passed by the learned courts below would show that defendants-appellants have no case either on facts or in law. It is so said, because Hari Kishan-father of the appellants-defendants suffered a decree dated 8.6.1996 in favour of his brothers-plaintiffs on the basis of a family settlement. This family settlement, which was the real crux of the matter, was not disputed by the appellants. Even during the course of hearing, learned counsel for the appellants could not dispute the family settlement on the basis of which, father of the appellants suffered the decree dated 8.6.1996 in favour of plaintiffs-respondents. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing the impugned judgments and decrees and the same deserve to be upheld.

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Firstly, learned trial court discussed each and every aspect

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of the matter going into minute details of the case, before recording Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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its cogent findings, rightly decreeing the suit of the plaintiffs. Secondly, learned Additional District Judge re-appreciated the facts of the case, evidence available on record and also the findings recorded by the learned trial court. First appeal was rightly dismissed.

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Before arriving at a judicious conclusion, learned first appellate court recorded its own cogent findings, relevant part of which, as contained in para 12 of the impugned judgment, reads as under:-

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“ If the plea of the appellants is taken to be gospel truth that the settlement deed Ex.D5 was executed by the appellants in view of the family settlement in the year 1996 and the appellants honoured the commitment of their father even then the appellants have no legs to stand because it could be a probable ground for them to avoid the settlement deed by stipulating that their father had already transferred 10 kanals 6 marlas of land as per family settlement in favour of plaintiffs. Absolutely no counter claim has been preferred in the present case and settlement deed Ex.D5 has not been tried to be avoided which again compels this court to lay down that the settlement deed Ex.D5 dated 15.2.2005 and civil court Judge (Sr. Divn), Kaithal are district transactions. Even at the time of execution of Ex.D5, the appellants were owner of 224.5 shares and they could legally execute the settlement deed. The appellants shall be at liberty to raise as many pleas as possible in case the appellants want to avoid the settlement deed Ex.D5 but as far as the consent decree dated 8.6.1996

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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passed by the court of Sh. J.S.Jangra, the learned civil Judge (Sr. Divn), Kaithal is concerned the same has to be given effect to by the courts. It will be worth mentioning here that in settlement deed Ex.D5 dated 15.2.2005 there is nothing written about family settlement of 1996 and the same also negates the plea put forth in the written statement. The entire confusion is on account of the reason that the appellants are trying to intermingle two transactions i.e. Consent decree and settlement deed. The findings of trial court on issues No.1 and 2 are accordingly held to be well reasoned and no interference is called there in and are affirmed. No arguments have been addressed on the remaining issues and the findings on remaining issues recorded by the learned trial court are otherwise will reasoned and are affirmed.”

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Plaintiffs-respondents took specific and categoric averments

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in the plaint and in order to prove their pleadings, they led sufficient, cogent and well convincing evidence. On the other hand, defendants-appellants failed to controvert the specific pleadings of the plaintiffs as required by law and also failed to lead any cogent evidence, so as to substantiate their case. They never challenged the abovesaid decree 8.6.1996 on the basis of fraud or misrepresentation. Further, they also did not set up any counter claim even in the present suit. In this view of the matter, it is unhesitatingly held that learned courts below rightly decreed the suit of the plaintiffs and the impugned judgments and decrees deserve to be upheld, for this reason also.

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During the course of hearing, learned counsel for the

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 940 of 2011

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appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments passed by both the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law muchless substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, instant appeal stands dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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05.03.2014 AK Sharma

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

Randhir and Ors. v. Parsani Devi & Ors.

Case brief

What is this about?

What did the court decide?

Randhir and Ors. v. Parsani Devi & Ors.

Case brief

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What did the court decide?

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