JUDGMENT [ENTITY], J.
1. This is a defendants' appeal and has been directed against the judgment and decree dated 19.10.1987, passed by the Court of Addl. Distt. Judge, Ludhiana, who accepted the appeal of [ENTITY], plaintiff-respondent by setting aside the judgment and decree of the Trial Court dated 30.9.1985 and decreed the suit of the plaintiff-respondent for possession of the land measuring 2 bighas comprised in Khasra No. 1141 min and also granted a decree for permanent injunction against the defendants-appellants from interfering in the ownership and enjoyment rights of the plaintiff-respondent with respect to the land measuring 24 bighas as fully described in the head note of the plaint. It may be mentioned here that earlier the suit of the plaintiff was dismissed by the Trial Court.
2. The brief facts of the case can be noticed in the following manner :
3. The case set up by the plaintiff before the Trial Court was that she has become the owner of the suit land measuring 24 bighas fully described in the head note of the plaint as a result of the compromise decree passed on 31.5.1979 instituted by her against her husband [ENTITY] and defendant Nos. 1 and 2. She remained in possession of the suit land as owner and, thereafter, by getting it cultivated with the help of her son-in-law. In May, 1983, after the plaintiff reaped the wheat crop, defendants took forcible possession of the land measuring 2 bighas comprised in Khasra No. 1141 min out of the suit land. They refused to deliver the possession to the plaintiff when approached on 24.7.1983. It is further alleged by the plaintiff that she being the owner of the suit land and also she being in possession of the same, her possession cannot be disturbed. Defendant Nos. 1 to 3 are threatening to dispossess her from the remaining suit land measuring22bighas. Thus, the plaintiff claimed a decree for possession with respect of 2 bighas of land from which she had been illegally dispossessed and permanent injunction with respect to the land measuring 22 bighas over which she asserted her possession.
4. The suit was contested by the defendants. Defendants 1 and 2 are sons of defendant No. 3. Accordingly to these defendants, the suit land was previously owned by [ENTITY], father of defendant No. 3. Plaintiff is Wife of the said [ENTITY]. Defendants have further asserted that defendant Nos. 1 and 2 have become the owner of the suit land on the basis of the sale deed executed by their grand-father [ENTITY]. The suit land was given to the plaintiff by the defendants under a compromise for her maintenance only. Thus, she acquired no ownership rights in it. However, the defendants admitted that a civil suit was filed by the plaintiff against her husband [ENTITY] and a compromise decree was passed by the Court of Shri [ENTITY], the then Sub-Judge, 1st Class, Ludhiana, and the said decree was subsequently corrected on 21.2.1981 by the Court of Shri [ENTITY], as there was some clerical mistake. It is denied by the defendants that they have taken the possession of the land measuring 2 bighas. According to the defendants, the entire land measuring 24 bighas is still in the possession of the plaintiff. Therefore, the question of restoration of the possession of 2 bighas of land does not arise. According to the defendants, the plaintiff was only made a limited owner under the compromise decree dated 31.5.1979 corrected on 21.1.1981 and she could enjoy the fruits of the possession under the said compromise in lieu of her maintenance whereas the ownership always remained with defendant Nos. 1 and 2. The defendants further alleged that infact the plaintiff wanted to alienate the land, defendant Nos. 1 and 2 requested the plaintiff not to alienate the property. The suit has been filed simply to harass defendant Nos. 1 and 2 so that the plaintiff may conveniently sell the property.
5. From the pleadings of the parties, the following issues were framed by the Trial Court:
"(1) Whether the plaintiff is the owner of the suit land and is entitled to its possession?
OPP (2) Whether the suit is bad for mis-joinder of defendant No. 2 as alleged in preliminary objection No. 1 taken in the written statement filed by the defendants?
OPD (3) Whether the plaintiff is entitled to the injunction prayed for?
OPP (4) Relief."
6. The parties led oral and documentary evidence in support of their case. Issue No. 1 was decided against the plaintiff and it was held by the Trial Court that the plaintiff is not the absolute owner of the land. Rather, she is only a limited owner and she can enjoy the property but ownership does not vest in her. Issue No. 2 was also decided against the plaintiff and it was held that since defendant No. 3 is not in possession of any part of the property, therefore, he has been unnecessary added as a party. Finally, the suit of the plaintiff was dismissed.
7. Aggrieved by the judgment and decree of the Trial Court, the plaintiff filed an appeal before the first Appellate Court, which for the reasons given in paras 8 to 12 of the judgment, set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiff against the defendants for the possession of the land measuring 2 bighas and also granted a decree for permanent injunction restraining the defendants from interfering in the ownership and enjoyment rights of the plaintiffs with respect of the entire area of 24 bighas. Para Nos. 8 to 12 read as under:
"8. In the first instance the learned Counsel for the plaintiff/appellant has assailed the findings of the lower Court on Issue No. 2. This issue arose from the preliminary objection raised by the defendants in the written statement that defendant No. 3 was not in possession of any part of the suit property and had no right or interest in it and that he was not a necessary party and the suit was bad for misjoinder of parties. The onus to prove this issue lay upon the defendants. The findings of the lower Court on this issue are quite conflicting and confusing. It was observed by the learned Sub-Judge that the issue has not been argued or pressed by the Counsel for the plaintiff. It appears that the word 'plaintiff has been written by him by mistake in place of 'defendants' as the issue arose on the objections of the defendants and it were they who did not press the same before the lower Court. Surprisingly the issue has been decided in favour of the defendants and against the plaintiff though the correct finding should have been against the defendants on the issue they did not press it. I thus reverse the above findings of the learned lower Court on Issue No. 2.
9. It is admitted case of both the parties that the suit land was previously owned by [ENTITY], husband of the plaintiff. [ENTITY] had transferred the suit land alongwith some other land in favour of his grand-sons, [ENTITY] and [ENTITY] defendant Nos. 1 and 2, by executing different sale deeds. Plaintiffs filed a suit to challenge the validity of the aforesaid sale deeds and sought a declaration that she was the owner in possession of a house and the land including the suit land and that the sale deeds executed by [ENTITY] in favour of defendant Nos. 1 and 2 were not binding upon her and did not affect her right of maintenance against his property. It is so apparent from the nature of the suit as given in the decree-sheet Ex. P3, pertaining to the above referred suit earlier filed by the plaintiff against her husband, [ENTITY] and present defendant Nos. 1 and 2, A correction of the decree Ex. P3, dated 31.5.1979 was made vide order Ex. PI, with a view to describe the subject-matter of the suit in bighas, biswas and biswansis is in place of kanal and marlas as earlier wrongly mentioned in Ex. P3. The contents of the decree Ex. P3, and the admissions made by the parties in the pleadings of the present suit have also shown that the land in dispute in the present suit measuring 24 bighas was given to the plaintiff for her maintenance and the sale deeds executed by [ENTITY] in favour of defendant Nos. 1 and-2 were held as inoperative against the right and interest of the plaintiff to have maintenance and did not affect the land in suit under the abovesaid compromise decree Ex. P3.
10. The only question which now falls for determination before this Court is as to whether plaintiff became absolute owner of the suit land under the above decree or only a restricted owner.
11. Learned Counsel for the appellant has contended that the case of the plaintiff is fully covered by the provisions of [SECTION] of the [ACT], as she acquired the property under compromise decree in lieu of her pre-existing right of maintenance. He has placed reliance upon the rule laid down by the Supreme Court in [PRECEDENT] [PRECEDENT]; and Smt. [PRECEDENT], in support of his above contention.
To repel the above arguments of the learned Counsel for the appellant my attention was drawn to [SECTION] of the [ACT] by the learned Counsel for the respondents. By referring to the provisions of Sub-section (2) learned Counsel for the respondents has argued that the provisions of Sub-section (1) were not applicable to the case since the suit property was given to the plaintiff under a decree for a limited purpose of her maintenance and nothing more. No authority was cited by the learned Counsel for the respondents in support of his above submission.
I have carefully considered the above arguments of the learned Counsel for the parties and also the law settled in the authorities cited as above. No doubt the land in suit was given to the plaintiff for her maintenance under the compromise decree Ex. P3, dated 31.5.1979. But it is well-settled that a Hindu female has a pre-existing right of maintenance against the property of her husband and any property given to her in satisfaction of any such right becomes her absolute property and she becomes its full owner under the provisions of [SECTION] of the [ACT] as enunciated in [PRECEDENT] (supra). It is further to be noted that no restrictions were imposed upon the right of the plaintiff as acquired in the suit land under the decree Ex. P3. She undoubtedly became the full owner of the suit property as it was given to her in lieu of her pre-existing right of maintenance as held in the above authorities. Being the owner of the suit property the plaintiff is also entitled to retain its possession and to alienate it or to deal with it in any manner as she likes. The defendants have disputed her title in the suit property and her right to alienate it and this amounted to a sufficient threat to enable the plaintiff to approach the Court for seeking the relief of permanent injunction to restrain the defendants from interfering with her ownership and enjoyment of the suit land. It is also proved by the sworn testimony of the plaintiff and her son-in-law, [ENTITY] (P.W. 2) that the was forcibly dispossessed from two bighas of the suit land immediately after the harvesting of Hari crop of 1983. The statement made by defendant, [ENTITY], that they never dispossessed the plaintiff from the above land is not worthy of reliance. There was nothing to bar the plaintiff to seek the relief of possession of two bighas out of the suit land in case she had been really dispossessed of by the defendants. Her evidence must be accepted to prove that she was dispossessed from the aforesaid land and its possession must be restored to her being its owner."
8. In this manner, the present appeal of the defendants who are not satisfied with the judgment and decree dated 19.10.1987 passed by the first Appellate Court.
9. I have heard the Counsel for the parties and with their assistance have gone through the record of this case.
10. The argument which was raised by the Counsel for the appellants is that under the compromise decree dated 31.5.1979, the plaintiff got the property for the first time for her maintenance only and, in these circumstances, the provisions of [SECTION] of the [ACT] (hereinafter called 'the Act') will not apply. She could only enjoy the fruits of the land measuring 24 bighas but the intentions of the plaintiff are bad and in the garb of that compromise decree she wants to alienate and transfer the same and this right is not open to the plaintiff, therefore, her suit has been rightly dismissed by the Trial Court.
11. On the contrary, the argument raised by the Counsel for the respondent is that there was a pre-existing right of [ENTITY] in the property of her husband and recognising her pre-existing right of maintenance, the property has come to [ENTITY] in a compromise decree and, in these circumstances, the provisions of [SECTION] of the Act shall apply and not that of [SECTION] of the Act and this aspect of the case has been rightly appreciated by the first Appellate Court, therefore, the appeal of the present appellants should be dismissed.
12. It may also be mentioned here that during the course of submissions, the learned Counsel for the appellants even made a mention before the Bench that the defendants will not disturb the possession of [ENTITY] over the entire area of 24 bighas and they are inclined to make a statement that [ENTITY] was and still in possession of 24 bighas of land and the defendants shall not disturb her possession during her life-time. This statement made by the Counsel for the appellants before the Bench was not acceptable to the plaintiff-respondent for the obvious reason that there was a catch in the said statement. The learned Counsel for the respondent has stated that in fact [ENTITY] is the owner of the entire area of 24 bighas, she has been dispossessed with respect of 2 bighas. For this reason, she is craving the possession of 2 bighas and with regard to the remaining 22 bighas of land, she is asking for a decree for permanent injunction as defendant Nos. 1 and 2 wanted to disturb her possession.
13. After considering the rival contentions of the parties, this Court is of the considered opinion that this appeal is totally without any merit and the provisions of [SECTION] of the Act are clearly applicable in this case and not the provisions of [SECTION] of the Act.
14. [SECTION] of the Act lays down that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. According to the Explanation added to [SECTION] of the Act, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or as a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase, or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhan immediately before the commencement of this Act.
15. According to [SECTION] of the Act nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the Gift Will or other instrument or the decree, order or award prescribe a restricted estate in such property.
16. Even a trio would agree that [SECTION] of the Act is an Exception to [SECTION]. It is the basic principle of law that a Hindu woman has a right of maintenance qua her husband in the property held by her husband meaning thereby, that [ENTITY] had a pre-existing right in the estate held by her husband Shri [ENTITY]. The Explanation also makes it clear and gives a very liberal and wide interpretation to the word 'property' and clearly spells out that if any property is acquired by a woman in lieu of arrears of maintenance, such property will be considered as a property for the purposes of [SECTION] and such property will be her absolute property. I do admit that there was some confusion when the compromise decree was effected. In these circumstances, it has become relevant for us to understand as to what was the suit which was filed by [ENTITY] earlier against her husband [ENTITY] and [ENTITY] and [ENTITY] and what were the orders and decree passed.
17. [ENTITY] filed [CASE NUMBER] against her husband [ENTITY], [ENTITY] and [ENTITY] for declaration that she is the owner and in possession of the house situated in village Araichan, Sub Tehsil Payal, District Ludhiana, as shown in the site plan and that the sale deed of the land measuring 0 bigha 3 biswas 15 biswansis, being the l/8th share of land measuring 2 bighas comprised in Khasra No. 1052; the land measuring 7 bighas 5 biswas 0 biswansi, comprised in Khasra Nos. , situated in village Araichan and sold by defendant No. 1 in favour of defendant Nos. 2 and 3 fictitiously vide sale deed dated 12.8.1975 and also sale of the land measuring 27 bighas 18 biswas, 0 biswansi, being 1/2 share of land measuring 53 bighas 17biswas Obiswansi, comprised in Khasra Nos , and also the land measuring 9 bighas 18 biswas 0 biswansi comprised in Khasra No , situated in village Araichan, sold fictitiously by defendant No. 1 in favour of defendant Nos. 2 and 3 vide sale deed dated 12.8.1975 and also the land measuring 27 bighas 29 biswas 0 biswansi being 1/2 share of land measuring 55 bighas 17biswas 0 biswansi, comprised in Khasra Nos. , sold fictitiously by defendant No. 1 in favour of defendant Nos. 2 and 3 vide sale deed dated 5.8.1975 and also l/8th share of land measuring 1 bigha 10 biswas 0 biswansi comprised in Khasra No , and also 1/4th share of the land comprised in Khata Nos. , situated in village Araichan, fictitiously sold by defendant No. 1 in favour of defendant Nos. 2 and 3 vide sale deed dated 5.8.1975, are illegal, void and do not in any way affect the rights of maintenance of the plaintiff against the property. Meaning thereby that [ENTITY] had given challenge to several sale deeds executed by defendant No. 1 [ENTITY] in favour of defendant Nos. 2 and 3 and the specific case of the plaintiff at that time was that by virtue of those sale deeds, her right of maintenance could not be defeated by defendant No. 1. When that suit came up for hearing before Shri [ENTITY], Sub-judge, 1st Class, Ludhiana, a compromise was effected. [ENTITY] made a statement before [ENTITY], which reads as under :
"I admit the correctness of the statements made by the defendants. Sale deeds effected will operate except to the land given to me for maintenance and mutation be sanctioned in my favour in the column of ownership to the extent of the land given to me in lieu of maintenance."
18. From the statement of [ENTITY], it is abundantly clear that she had forgiven her right to challenge the sale deeds executed by defendant No. 1 in favour of defendant Nos. 2 and 3 but with regard to the land in dispute, i.e. 24 bighas, this land was given to her in lieu of her right of maintenance which she has against the defendant No. 1. That is the reason she ever prayed to the Court in her statement that mutation be sanctioned in her favour in the column of ownership to the extent of the land given to her in lieu of maintenance. On the basis of this statement, an order was passed to the following effect:
"The parties have compromised. In accordance with the compromise arrived at, the suit of the plaintiff is decreed for declaration that she is owner in possession of the house in dispute fully mentioned in the head note of the plaint and shown in red colour in the plan attached thereto. It is also declared that 24 kanals of land comprised in Killa Nos. 859(7-1), 860(6-5), 861(5-0), 1389/1142(1-14), 1392/1146(2-0) and Khasra No. 1141 (2 kanals out of 3 kanals 9 marlas), shall be held by the plaintiff for her maintenance and that the sale deeds in dispute mentioned in the head note of the plaint shall not operate against the right and interest of the plaintiff to have maintenance. However, the sale deeds will be operative except to the land given to the plaintiff mentioned above, for maintenance. A copy of this order be sent to the Tehsildar concerned to sanction mutation in favour of the plaintiff to the above effect and have an entry made in the column of ownership regarding the above-mentioned khasra numbers to have been given to the plaintiff in lieu of maintenance. The parties shall bear their own costs.
[ENTITY] 31.5.1979."
19. It may be mentioned here that there was a clerical mistake on the part of Mr. [ENTITY] in the order dated 31.5.1979. The word Kanal was supposed to be written as bigha and for this reason an amendment was made in the said order vide Ex. PI dated 21.2.1981 by Shri [ENTITY], who was the successor Court of Mr. [ENTITY].
20. On the basis of this order, a decree was drafted which is Ex. P3 on the record, I may also make a mention that I have quoted the order of Mr. [ENTITY] and the statement of [ENTITY] after obtaining the certified copies of these documents from the Counsel for the parties. Reverting to Ex. P3, the decree which was formulated on the basis of the order, was to the following effect:
"It is ordered that in accordance with the compromise arrived at, the suit of the plaintiff is decreed for declaration that she is owner in possession of the house in dispute fully mentioned in the head note of the plaint and shown in red colour in the plan attached thereto. It is also declared that 24 bighas of land comprised in Killa Nos. 859(7-1), 860(6-5), 861(5-0), 1389/1142(1-14), 1392/ 1146(2-0) and Khasra No. 1141 (2 kanals out of 2 kanals 9 marlas) shall be held by the plaintiff for her maintenance and that the sale deeds in dispute mentioned in the head note of the plaint shall not operate against the right and interest of the plaintiff to have maintenance. However, the sale deeds will be operative except to the land given to the plaintiff mentioned above, for maintenance."
21. Thus, all these documents leave no manner of doubt that there was a preexisting right of maintenance in favour of [ENTITY]. That right was acknowledged by the defendants and in lieu of her maintenance, the land in suit was given alongwith the house. In such a situation, it cannot be said that [ENTITY] was acquiring the property, as a limited owner or for the first time so as to attract the provisions of [SECTION] of the [ACT]. Once this position becomes clear to the Court, then, the observations of the Hon'ble Supreme Court, in [PRECEDENT], can be applied in this case, where it was held that where a property has been given to a female Hindu in lieu of her maintenance by way of compromise and that she was in possession and was enjoying the same from the date of compromise, in such a situation, the provisions of [SECTION] and [SECTION] will apply and such female Hindu would become an absolute owner of the property irrespective of any restriction or convenants attached with such grant etc.
22. The ratio of the judgment in [PRECEDENT]'s case (supra), is fully applicable to the facts in hand.
23. Similar were the observations of the Hon'ble Supreme Court in [PRECEDENT], where it was held that where a Hindu female acquires property under compromise in lieu of satisfaction of her right of maintenance, though the compromise may prescribe her as a limited owner, still the provisions of [SECTION] shall apply and not the provisions of [SECTION] of the Act.
24. My attention was also invited to [PRECEDENT]; and [PRECEDENT]. These authorities fortify my view that the provisions of [SECTION] of the Act would apply in the present case.
25. Thus, the substance of the above discussion is that the property in suit was given to [ENTITY] acknowledging her pre-existing right of maintenance. She did not acquire the property for the first time under the compromise decree though it is written in the compromise decree that this property has been given for her maintenance, yet she will become the full-fledged owner of the property as rightly observed by the first Appellate Court. I endorse the reasons adopted by the first Appellate Court and do not see any merit in the appeal which is hereby dismissed with no order as to costs.