Appeal against dismissal of suit for declaration and permanent injunction. Court held oral family settlement unproven due to lack of documentary evidence and mutation, suit barred by limitation, and original decree valid as owner was recorded in revenue records.
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������������������������� Date of Decision: September 23, 2015
Ujjagar Singh and another
....Appellants..
Versus
Bhajan Singh and others
....Respondents..
�����!� ���"�#��������������������#������ Present : Mr. S.K. Singla, Advocate, for the appellant(s).
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1. Whether Reporters of local papers may be allowed to see the judgment?
3. Whether the judgment should be reported in the Digest? (√)
�����#������� , J.
This appeal has been directed by Ujjagar Singh and others (appellants) feeling dissatisfied against the judgment and decree dated October 06, 2012 passed by ld. Additional District Judge, Sangrur vide which judgment and decree dated March 05, 2009 passed by ld. Civil Judge (Junior Division), Malerkotla has been affirmed whereby suit of plaintiffs for declaration and permanent injunction to the effect that plaintiffs and defendants No. 1 and 2 are the owner to the extent of 2/7th share and defendants No. 3 to 5 to the extent of 3/7th share, are owners in possession of land measuring 20 ������ 10 ������ comprised of ���������������� No. 135/350, ������ Nos.180(4<10), 183(5<13), 184 (4<2) and 187(6<5) situated at village Burj, Tehsil Malerkotla as per ��������� for the year 2000<01 alongwith all rights attached with the above land and that they are entitled SONIKA 2016.06.15 16:21I attest to the accuracy andto get the mutation of said land sanctioned in their favour as well as that the integrity of this document Chandigarh
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judgement and decree dated August 05, 1991 passed in civil suit No.543 of July 20, 1991 and subsequent mutation sanctioned on the basis thereof are illegal, null and void and is not binding upon the rights of plaintiffs and proforma defendants No. 3 to 5 as well as for permanent injunction restraining defendants No. 1 and 2 from alienating in any manner and from dispossessing them from suit land, was dismissed.
SONIKA 2016.06.15 16:21 I attest to the accuracy and integrity of this document Chandigarh
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SONIKA 2016.06.15 16:21 I attest to the accuracy and integrity of this document Chandigarh
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led oral as well as documentary evidence in respect of their pleadings and subsequently closed their evidence.
SONIKA 2016.06.15 16:21 I attest to the accuracy andsight or omission, mutation on the basis of the family settlement could not integrity of this document Chandigarh
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be incorporated/sanctioned in favour of the parties. It is well settled proposition of law that the mutation does not confer any title, which otherwise, remained continued in the name of Sham Singh in the revenue record. It was Zora Singh and Bhajan Singh defendants No. 1 and 2, who by taking undue advantage of the entries in the revenue record got procured collusive decree from Sham Singh by Civil Suit No. 543, dated July 20, 1991 that too by ignoring the oral family settlement arrived at between the parties in the year 1975. Moreover, after the family settlement, Sham Singh was left with no right in the property in dispute and was not competent to suffer the collusive decree. Not only this, even Bhajan Singh defendant No.2 while appearing in the witness box as DW<4 has also categorically admitted that Sham Singh gave the suit property to all the brothers in equal share in the family settlement in the year 1975. Admission is best proof and no corroboration is required to the admission in this regard. Since, Sham Singh was not the owner of the property in suit on the date i.e. July 20, 1991, he suffered a decree, thus the same is liable to be set aside. Similarly, the impugned judgments and decrees are also not sustainable in the eyes of law and deserves to be set aside by way of acceptance of instant appeal. Consequently, suit of the plaintiff merit decretal that too with special costs.
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that an oral family settlement took place, in which the land in question was given to the plaintiffs as well as defendants in equal shares by Sham Singh in the year 1975 but there is no documentary evidence in this regard. The statements of plaintiffs in this regard or that of defendant(s) can be said to have been not proved on record. In case, ��������������������������� �������������������������������������������� this Court has observed that where there is plea of family partition but exact date when family partition took place never disclosed and also it was not recorded in the revenue record, it was held that family partition was never proved.
13 The aforesaid authority squarely covers the case in hand. Though, family settlement is alleged to have been taken place in the year 1975, but to the utter surprise till the filing of the suit before the ld. trial court in the year 2003, no such family settlement has seen the light of the day. Moreover, on the date when civil court decree was suffered by Sham Singh, he was the owner in possession of the property in suit as per revenue record. It is also well settled that until and unless factum of family partition is not incorporated in revenue record and mutation is not sanctioned thereof and the possession is delivered in pursuance of family settlement to the concerned persons, it cannot be said that there was a family settlement in between the parties. Not only this, judgement, which has been challenged through instant lis relates to the date August 05, 1991, which was challenged in the year 2003 i.e. after the expiry of more than 12 years and from this angle suit is not maintainable beyond limitation. The suit should have been filed within 3 years from the date of decree as per Article 59 of the Limitation Act 1963. Defendants No. 1 and 2 are the absolute owner of SONIKA 2016.06.15 16:21 I attest to the accuracy andthe property in suit on the basis of decree in question i.e. August 05, 1991, integrity of this document Chandigarh
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which has been incorporated in the revenue record. Mutation No. 1307 has also been sanctioned on the basis thereof. Since, defendants No. 1 and 2 are absolute owner of the property in suit, neither they dispossessed from the suit property nor they can be restrained from alienating the appellants therefrom. Rather, plaintiffs have noting to do with the property in question and the suit for declaration and permanent injunction has been rightly dismissed by the ld. Civil Judge, Junior Division, Malerkotla vide judgment dated March 05, 2009, which has been upheld by ld. Additional District Judgem Sangrur vide judgment dated October 06, 2012.
September 23, 2015 ������#������ sonika �����
SONIKA 2016.06.15 16:21 I attest to the accuracy and integrity of this document Chandigarh
3 issues framed by the court
Whether the oral family settlement alleged to have taken place in 1975 was proved in absence of documentary evidence and revenue record mutation.
Whether the present suit filed for declaration and injunction was barred by limitation having been brought more than 12 years after the decree in question.
Whether the decree obtained in 1991 by Sham Singh who was the absolute owner as per revenue record was liable to be set aside.
Ujjagar Singh
Bhajan Singh
, J.
As recorded by the court registry
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