Prem Chand and Ors. Vs Ram Lal and Ors.

Present: M r . Vijay Kumar Jindal, Sr. Advo c ate with M r . Akshay Jindal, Mr.Vijayveer S ingh and M r . Pankaj Gautam, Advocates for the appellants.

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M r . Pritam Singh Saini, Advocate, M r . Deepak Saini and Ms. Vamika Johar, Advocates for the respondents.

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MANDEEP PANNU,J.

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Th e plaintiffs/respondents No.1 a n d 2 (herein), Sham Lal and R am Lal, sons of N a nd Lal, instituted the suit for d eclaration and joint possessio n of agricultural lan d measuring 36 kanals 1 marla situated in village Kirmach, Te h sil Thanesar, Distr i ct Kurukshetra.

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Brief Facts

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Th e plaintiffs pleaded that they, along with defendant No.1 P r em Chand (their br o ther) and other heirs, constitute d a joint Hindu family, and the land in dispute was ancestral property in the ha n ds of their father, Nand Lal. On 13.06.1984, Na n d Lal had suffered a consent d e cree in Civil Suit No. 729 of 1 9 84 in favour of de f endant no.1 (Prem Chand) and his minor sons (defendants nos . 2–

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4). Nand Lal, b e ing a coparcener, was not com p etent to alienate the ancestral land without legal n e cessity. The decree was there f ore illegal, null and void, and not binding upon t h e plaintiffs. Defendant no.1 w as interfering with their righ t to cultivate their s h ares in the land. The plaintiffs sought a declaration that the de c ree dated 13.06.19 8 4 be set aside and that they be d eclared co-owners entitled to j o int possession of t h e land.

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Th e contesting defendants No.1 to 4/appellants No.1 to 4 admitted the relationship but denied the ancestral nature of t h e property, asserting that Nand Lal was the absol u te owner and competent to a l ienate the property. They fur t her contended that t he decree of 1984 was the resu l t of a family settlement. It was a lso pleaded that as agriculturists, the parties wer e governed by agricultural cus t om rather than Hin d u law.

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4, Fr o m the pleadings of the parties, f ollowing issues were framed 1. Whether the judgment and decree dated 13.06.1984 in C ivil Su i t No. 729 of 1984 are illegal, v oid, ineffective against the inte r est of t he plaintiff and are liable to be s et aside? OPP 2. Whether the defendants No . 1,5 and 6 along with the plain t iffs are owners in equal shares in the s u it land? OPP

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Whether the plaintiffs are e n titled to the possession of the suit la n d as alleged? OPP 4. Whether the suit is not main t ainable in the present form? OPD 5. Whether the plaintiffs have no locus standi to file the pre s ent sui t ? OPD

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Whether the plaintiffs have c oncealed the material facts, if s o to w h at effect? OPD

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Whether the plaintiffs have n o cause of action? OPD

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Relief.

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In order to prove their case, following documentary evidence w as

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adduced by the p arties.

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To establish the ancestral nature o f the property, the plaintiffs re l ied on revenue rec o rds:

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i) Pedigree Table Ex. P1, Jam a bandies Ex. P6 (1956–57), Ex. P7 (1 9 63–64), Ex. P8 (1967–68), Ex. P9 (1972–73), Ex. P10 (1977– 7 8), Ex . P11 (1982–83). 2) Ex. PW2/A (Intkhab), Ex. P X (Khatauni Pamais), and Ex. PY (K h atoni Istemal) prepared by the r evenue authorities.

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Pl a intiffs by leading the above sa i d evidence has tried to prove t hat these document s demonstrated the chain of title. Land was recorded in the nam e of Murli, son of R a m Narain. After Murli’s death, the property was mutated in fa v our of his sons in c luding Nand Lal. By succes s ive inheritance and consolida t ion proceedings, N a nd Lal came to own a ½ share o f 36 kanals 1 marla (18 kanals) and that the consist e nt entries in the revenue recor d s reflected that the land had pa s sed through genera t ions by inheritance and therefo r e retained its ancestral character in the hands of Na n d Lal.

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The defe n dants did not produce any do c umentary evidence to prove t h eir case.

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Findings of the Trial Court

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O n the question of ancestral char a cter, based on the Jamabandi and mutation recor d s, the court held that the land h a d devolved by inheritance thro u gh

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the family line and was thus ancestral prope r ty in the hands of Nand Lal. T he contention that i t was self-acquired was rejecte d . 10. O n the issue of consent decree of 1 984 trial Court observed that since the property w a s ancestral, Nand Lal was not c ompetent to alienate without l e gal necessity. As n o such necessity was proved, the consent decree was decl a red illegal, null and void, and not binding on the pl a intiffs. 11. Le a rned trial Court, finally de c lared the plaintiffs, along w ith defendant no.1 (Prem Chand) and defendants n os. 5 & 6 (daughters of Nand L al), as co-owners i n equal shares and entitled to joint possession. Issues regar d ing maintainability, locus standi, concealment, an d cause of action were decide d in favour of the pl a intiffs. The suit was accordingl y decreed.

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Findings of the Lower Appellate Court

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Le a rned Additional District Judg e reconsidered the revenue rec o rds (Jamabandi Ex. P1–P11, Khatauni Istemal Ex. PX, Intkhab Ex. PW2/A, etc.) a nd reaffirmed that the property came down by i n heritance, and thus was ance s tral property. The p lea that the decree of 1984 re p resented a family settlement w as disbelieved. No cogent evidence was led in sup p ort. 13. W h ile affirming the trial Court’s m ain findings, the lower Appel l ate Court modified the decree to the extent that o n ly coparceners by birth (plaint i ffs, defendant no.1, and defendants nos. 2 to 4) w ere entitled as joint owners. T he daughters (defe n dants nos. 5 & 6) were exclu d ed from coparcenary rights u n der the law then pr e vailing. 14. Th e decree dated 13.06.1984 was d eclared illegal, null and void. T he appeal was dis m issed with costs.

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Fe e ling aggrieved by the above s a id judgements and decrees pa s sed by the lower c o urts with concurrent findings, t he present Regular Second Ap p eal was filed befor e this Court by the defendants N o.1 to 4/appellants Nos.1 to 4 , on nature of the pr o perty

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Findings of the High Court in RSA vide judgement dated24.07.2014

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Th i s Court noted that both the lear n ed trial Court and the learned F irst Appellate Cour t had relied upon the Intkhab/E x cerpt Ex. PW2/A, which had been proved by PW 2 Hira Lal, Muharrir Patwari. B oth the learned lower Courts h ad accepted this a s sufficient to prove the ance s tral character of the property a nd decreed the plai n tiffs’ suit. 17. This Court then reproduced Rules ( v ) and (vi) of Chapter 9, Volu m e I, which require t h at:

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a) An excerpt should be a true c opy and proved as such. b) The Special Kanungo or P atwari Muharrir must bring the ori g inal record to court for comp a rison, be put on oath, and con f irm the correctness of the excerpt. c) The court should, as a ru l e, compare the excerpt with the ori g inal record by checking certain entries. 18. Th e Court held that these require m ents had not been complied wit h in the present cas e . PW2 had not produced the o r iginal revenue record, nor had the court compared the excerpt with it. In the abse n ce of such proof, Ex. PW2/A c o uld not be treated a s admissible evidence.

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Th e Court emphasized that in cas e s of alleged ancestral property, the presumption is in favour of land being non- a ncestral unless proved other w ise.

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Since the plain t iffs had failed to establish the ancestral nature of the propert y in accordance wit h the Rules, they could not succ e ed. 20. Ac c ordingly, this Court concluded that the plaintiffs had faile d to prove that the p roperty in dispute was ancestra l in the hands of Nand Lal whe n he suffered the de c ree dated 30.06.1984 in favour o f defendants nos. 1 to 4. The R SA was allowed, a n d the judgments and decrees of both the courts below were set aside.

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It is relevant to mention here th a t The Hon’ble Supreme Cour t in Rajinder Kaur and Others Vs. Rajesh and Others, Civil Appeal No. 5890 of 2015 , arising o u t of SLP (C) No. 28053 of 20 1 4, remitted the case to High C o urt for formulating a substantial question of law.

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Subsequent proceedings

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As per the directions of the H on’ble Supreme Court to fr a me

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substantial question of law, the following subst a ntial questions of law framed:-

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Substantial Questions of Law

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Whether, without producin g the original revenue record f r om w h ich the excerpt (Intkhab) is p r epared and without following the pr o cedure prescribed under Rules ( v) and (vi) of Chapter 9, Volu m e I of t he High Court Rules and Orde r s, such excerpt can be admitte d in evidence?

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Whether property inherited f rom a female retains the chara c ter of ancestral/coparcenary propert y , so as to restrict the powe r of ali e nation of the holder under Hin d u law?

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Whether, after making a sta t ement to withdraw the suit, on e of the plaintiffs can still pursue the suit without formally withdra w ing su c h statement with the permissio n of the Court?

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It i s pertinent to mention here th a t respondent moved an applica t ion for additional e v idence under order 41 Rule 27 CPC. Arguments were heard in the Regular Secon d Appeal along with the application under order 41 Rule 27 CPC . 24. The l earned counsel for the appella n ts submitted that in the year 1 9 65, land measuring 18 kanals 1½ marlas had been p urchased by the sons of Nand L al, and the same continued to remain unpartition e d amongst them. It was there f ore urged that the c ourts below had erred in pres u ming that the entire suit land w as ancestral in cha r acter. 25. It w as next argued that all the do c uments which were relied upo n by the plaintiffs h a d been tendered only through their counsel, without being d uly proved in accor d ance with law. On this ground alone, the findings of the trial c o urt were liable to b e set aside.

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The counsel further submitted that PW2 Heera Lal, the Patwari, h ad merely produc e d Mutation Ex. PW2/A. Such a document, it was contended, by itself could not establish the ancestral characte r of the land, and the courts be l ow had attached un d ue weight to it. 27. At t ention was also invited to the f act that plaintiff Sham Lal, so n of Nand Lal, had made a statement before the learned Civil Judge admitting the ownership and p artition between the parties an d further stating that he did not w ish to press the suit. Despite such a categorical ad m ission, it was argued, the trial c o urt proceeded to decree the suit, which was wholly unjustified.

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Th e learned counsel further pointe d out that Murli Dhar, son of R am Narain, was recorded as owner of 10 bighas 1 7 biswas of land in 1904–05, an d in 1922–23, he a l so obtained 11 bighas 5 bisw a s from Prashani Devi, wido w of Chetu. Thus, th e total land reflected in Murli’s name came to 22 bighas 2 bis w as. On this basis, i t was argued that the finding of the courts below, that the prop e rty was ancestral i n the hands of Nand Lal, was wh o lly erroneous. 29. It w as next contended that the s aid land of 22 bighas 2 bis w as thereafter devol v ed upon Ram Rikh, Salag Ra m and Nand Lal in equal shares, and after consolida t ion in 1946–47, was converte d into 36 kanals 1 marla. The t rial court, however , fell into error in holding that the entire land was ancestral qua Nand Lal.

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He fu rther urged that even if the pro p erty was to be treated as ances t ral, on the death o f Salag Ram unmarried and int e state, his share devolved upon the two surviving brothers, namely Ram Rikh and N and Lal. Thus, the effective s h are of Nand Lal c o uld not have been the entire 36 kanals 1 marla, but at best o nly about 9 kanals.

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Th e learned counsel also pressed t h e argument that under settled law, for property to be regarded as ancestral in the hands of a coparcener, it mus t be shown to have descended from at least three g enerations. In the present case, the revenue record m erely traced it to Murli Dhar, a nd hence the courts below erre d in declaring it anc e stral.

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La s tly, it was urged that the tria l court wrongly proceeded on the assumption of fr aud, whereas no fraud had in f a ct been proved on record. The r eal and only issue, it was submitted, was whether the property in the hands of Nand Lal could in la w be treated as ancestral, which , according to the appellants, c o uld

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not be sustaine d . It was further contended th a t Ex. PW2/A was inadmissibl e in evidence, as th e original record was never pro d uced nor compared by the Cou r t in accordance wit h the mandatory Rules. Relian c e was placed on Hawa Singh v. Daya Nand (2010 (2) PLR 567) , to contend th a t it is well settled that presump t ion is in favour of the land being non-anecestral u nless and until it is proved to the contrary that it i s ancestral. 33. Co n versely, learned counsel for t h e respondents submitted that P W 2 had categorical l y deposed that he prepared the e xcerpt after consulting the orig i nal record, and tha t the appellants, though afford e d opportunity, chose not to cr o ssexamine on t h is point. Both courts below , after appreciation of oral and documentary e v idence including Jamabandis a n d pedigree table, concurrently h eld that the propert y was ancestral. He further cont e nded that they have also filed C M No. 6525-C of 2 024 under Order 41 Rule 27 C PC seeking permission to pro d uce the original rev e nue record from which Ex. PW 2 /A was prepared 34. As regards the appellants’ obj e ction to proof of Ex. PW- 2 /A (Intkhab), it wa s submitted that although this H o n’ble Court in its earlier judg m ent dated 24.07.2014 (RSA 2330 of 1993) had hel d that the excerpt was not prove d in terms of Rules (v) and (vi) of Chapter 9, V o l. I of the High Court Rules, the Hon’ble Supre m e Court in Rajinder Kaur and Others Vs. Rajesh and Others, Civil Appeal No. 5890 of 2015 had set aside th a t judgment and remitted the m a tter for fresh adjudi c ation on substantial questions of law. 35. It w as pointed out that the respon d ents have already moved CM N o. 6525-C of 202 4 for permission to lead addit i onal evidence so that the Special Kanungo or P a twari Muharrir may produce t h e original record from which Ex. PW-2/A was pr e pared, thereby curing any tech n ical defect.

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Fi n ally, it was prayed that since th e matter has now been remande d by the Hon’ble Su p reme Court for fresh decision, the judgments and decrees pa s sed by the courts below, being based on correct a ppreciation of the revenue rec o rds and family tree, were liable to be upheld, and t h e present appeal deserved dismi s sal with costs.

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Findings of this court

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Bo t h the lower Courts attached g reat importance to the jamab a ndi entries, mutatio n s, and consolidation records pr e pared by revenue authorities. 38. Th e trial court decreed the suit, de c laring the decree of 1984 void and plaintiffs co-o w ners entitled to joint possession along with other heirs. 39. Le a rned lower Appellate Court af f irmed the finding that the prop e rty was ancestral a nd that the decree was voi d , but modified the judgment by excluding daug h ters (defendants 5 & 6) from t h e coparcenary, restricting right s to coparceners by b irth.

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As regards the appellants’ obj e ction to proof of Ex. PW- 2 /A (Intkhab), it wa s submitted that although this H o n’ble Court in its earlier judg m ent dated 24.07.2014 (RSA 2330 of 1993) had hel d that the excerpt was not prove d in terms of Rules (v) and (vi) of Chapter 9, V o l. I of the High Court Rules, but Hon’ble Supre m e Court in Civil Appeal No. 58 9 0 of 2015 (Rajinder Kumar & O rs. v. Rajesh & O r s.) had set aside that judgmen t and remitted the matter for f r esh adjudication on substantial questions of law. 41. Th e counsel emphasized that Salag Ram died issueless, Ram Ri k h’s share devolved u pon his son Ram Sarup, and R am Sarup later sold his entire s h are in favour of N a nd Lal and his three sons, na m ely Sham Lal, Ram Lal and P r em Chand, as refl e cted in Ex. P/10 and Ex. P/11. In this way, the plaintiffs and

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defendants stoo d recorded as owners of the co n solidated land measuring 36 ka n als 1 marla.

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It w as further urged that the recor d s consistently reflected the lan d as ancestral in the hands of Nand Lal. The plainti ff s filed the suit claiming their s h are on the basis of i nheritance, and both the trial c o urt and the first appellate court h ad concurrently fo u nd that the property was ance s tral. The decree dated 13.06.1 9 84, having been su f fered by Nand Lal without com p etence, was therefore, set aside. 43. Th e learned counsel pointed out t h at to prove the ancestral natur e of the suit land, th e plaintiffs had produced the Pedigree Table (Ex. P/1), Jamaba n dis for the years 1 9 56–57 (Ex. P/6), 1963–64 (Ex. P/7), 1967–68 (Ex. P/8), 1972 – 73 (Ex. P/9), 1977–78 (Ex. P/10), 1982–83 ( E x. P/11), Mutation Ex. PW- 2 /A (Intkhab), Khat a uni Pamais Ex. PX, and Khat a uni Istemal Ex. PY and submi t ted that a perusal o f these records confirmed that Murlidhar was in possession s i nce 1904–05, and t h e land was thus coparcenary p r operty descending to the plain t iffs and defendants

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Ha v ing heard counsel for the part i es and perused the entire record, I am of the vie w that the first substantial question of law goes to the root of the matter. Rules ( v ) and (vi) of Chapter 9, Vol u me I of the High Court Rule s & Orders mandat e that when excerpts are tender e d in evidence, the original re c ord must be produ c ed for comparison by the C o urt and the official preparing the excerpt must be examined on oath. These requi r ements were not adhered to. 45. However, the Hon’ble Supreme Court in Sambhaji & Ors. v. Gangabai & Ors. Civil Appeal No.6731 of 2008, decided on 20.11.2008 hel d as

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under:-

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“ 1 1 . The processual law so do m inates in certain systems a s to ov e rpower substantive rights and substantial justice. The huma n ist rul e that procedure should be the h andmaid, not the mistress, of l e gal justice compels consideration of v e sting a residuary power in Ju d ges to a ct ex debito justitiae where th e tragic sequel otherwise woul d be wh o lly inequitable. Justice is the goal of jurisprudence, process u al, as m uch as substantive. No perso n has a vested right in any cours e of pr o cedure. He has only the right of prosecution or defence in the manner for the time being by or f or the Court in which the cas e is pe n ding, and if, by an Act of Pa r liament the mode of procedur e is alt e red, he has no other right than to proceed according to the alt e red mode. A procedural law shoul d not ordinarily be construed as mandatory, the procedural law is a lways subservient to and is in aid to j ustice. Any interpretation whi c h eludes or frustrates the recip i ent of j ustice is not to be followed. 12. Procedural law is not to b e a tyrant but a servant, not an ob s truction but an aid to justice. A procedural prescriptio n is ha n dmaid and not the mistress, a lubricant, not a resistant in the ad m inistration of justice.”

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Or d er 41 Rule 27 CPC provide s that additional evidence may be

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allowed if:

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(a) the trial court has refused to a d mit evidence which ought to h ave be e n admitted; or

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(b) the party seeking to produce e v idence was prevented by suffic i ent ca u se from producing it; or

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(c) the appellate court requires suc h evidence to pronounce judgment. 47. In the present case, the evidenc e sought is the production of the original record f rom which Ex. PW2/A was pre p ared and was not produced ear l ier, but is essential t o decide the real controversy. W ithout this, the substantial ques t ion of law on admi s sibility cannot be answered con c lusively.

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O n the first substantial question o f law, the controversy relates to the admissibility o f Ex. PW2/A (Intkhab). The rul e s require production of the orig i nal record for com p arison before excerpts can be a dmitted. Since this procedure w as not followed, a d ditional evidence is necessary. The plaintiffs have already mo v ed CM No. 6525- C of 2024 under Order 41 Ru l e 27 CPC, seeking permissio n to produce the or i ginal revenue record. In the i nterest of justice, this applica t ion deserves to be a llowed. 49. As regards the second and third s u bstantial questions of law, nam e ly, whether proper t y inherited from a female is a ncestral/coparcenary, and whe t her one plaintiff’s s t atement to withdraw the suit bi n ds the other plaintiff without c o urt permission, the findings shall be given only after the report of the trial c o urt received on the character of suit.

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Conclusion

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In view of the discussion made herein-ab o ve, the following order is passed:-

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C M No. 6525-C of 2024 under Or d er 41 Rule 27 CPC is allowed.

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Th e case is remitted to the learne d trial Court to permit productio n of the original revenue record from which Ex. P W 2/A was prepared and then al l ow cross-examination of the revenue official and r ebuttal evidence by the appellants. Thereafter, to r e cord findings afresh on the cha r acter of the suit property in lig h t of this additional e vidence.

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Su b mit a report with evidence t o this Court within five months, preferably from the date of receipt of copy of th i s order.

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It is clarified that the judgments a n d decrees of the Courts below are not set aside at this stage. They shall remain i n tact until final adjudication by t his Court.

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