Regular Second Appeal No. 1217 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1217 of 2004 Date of Order: 02.07.2009 Raj Singh and another ....Appellants Versus Dharambir and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Raj Mohan Singh, Advocate for the appellants. Mr. Arun Kumar Singal, Advocate for respondents No.1 and 2. RAJIVE BHALLA, J (Oral). The appellants challenge judgments and decrees dated 29.05.2001 and 30.10.2003, passed by the Civil Judge (Senior Division), Panipat and the Additional District Judge, Panipat, dismissing their suit and their appeal, respectively. The appellants filed a suit praying for a declaration that the judgment and decree dated 12.10.1988 suffered, by their father Surjan, in favour of the respondents is null and void. The appellants pleaded that Surjan had already suffered consent decrees dated 05.01.1970 and 20.09.1984 in favour of their mother Smt. Murti and the appellants. He was, therefore, not left with any interest in the land that he could validly transfer to the respondents. It was also pleaded that as the suit land is ancestral and the collusive decree has not been registered, the consent decree is a nullity. In opposition to these pleadings, the respondents asserted that the suit land is not ancestral and as Surjan was owner in possession of 55 Kanals and 19 Marlas of land even after he suffered the decrees dated 05.01.1970 and 20.09.1984, he was free to deal with his property in any such manner as he deemed appropriate. It was further asserted that as Surjan, has not challenged the decree, the plea with Regular Second Appeal No. 1217 of 2004 -2- respect to registration is not available to the appellants. On the basis of the pleadings, the trial Court framed the following issues:- 1) Whether the impugned judgment and decree dated 12.10.88 passed by the Court of Sh. T.C.Tanwar, the then Ld. Sub Judge Ist Class, Panipat in civil suit bearing No.1293/99 titled as Dharamvir etc. vs. Surjan are illegal, null and void, not binding upon the rights of the plaintiffs and liable to be set aside on the grounds mentioned in the plaint?OPP 2) If issue no.1 is proved, whether the plaintiffs are entitled to the possession of 1/4th share of the suit land, as alleged?OPP. 3) Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for?OPP 4) Whether the suit is within limitation?OPP 5) Whether the suit is not maintainable in the present form?OPD 6) Whether the suit is bad for non-joinder of necessary parties?OPD 7) Whether the plaintiffs have no locus standi to file the present suit?OPD 8) Whether the suit is bad for misjoinder of causes of action?OPD 9) Whether the suit has been filed at the instance and for the benefit of defendant no.3 and Smt. Murti Devi, as alleged? If so, to what effect?OPD 10) Whether the plaintiffs are estopped from challenging the decree by their own act and conduct?OPD Regular Second Appeal No. 1217 of 2004 -3- 11) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD 12) Whether the defendants are entitled to special costs u/s 35-A CPC?OPD 13) Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court dismissed the suit by holding that despite suffering the consent decrees dated 05.01.1970 and 20.09.1984, Surjan continued to be the owner of 55 kanals and 19 marlas of land. It was also held that as the appellants had failed to prove that the suit land was ancestral, they had no locus standi to challenge the judgment and decree dated 12.10.1988 Aggrieved by the aforesaid judgment and decree, the appellants filed an appeal. The first appellate court dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellants, submits that the courts below have misread the revenue record while holding that despite the consent decrees dated 05.01.1970 and 20.09.1984, Surjan continued to be owner of 55 kanals and 19 Marlas. It is submitted that neither the trial Court nor the first appellate court, made an attempt to calculate the land reflected in the consent decrees. After suffering these consent decrees, Surjan was not left with any interest in the suit land and, therefore, the consent decree dated 12.10.1988 is null and void. It is further argued that as the suit land is ancestral property, Surjan had no right to suffer the consent decree and even otherwise as it is unregistered, it does not pass a valid title to the respondents. Counsel for the respondents, on the other hand, submits that even a perfunctory appraisal of the decrees passed on 05.01.1970 and Regular Second Appeal No. 1217 of 2004 -4- 20.09.1984, in favour of Smt. Murti and the appellants discloses that the appellants claimed 3/10 share out of the entire land owned by Surjan, namely ½ share of , 547 Kanals and 10 Marlas (described as 561 Kanals and 10 Marlas in the suit), including the land transferred to their mother Murti Devi by the consent decree dated 05.01.1970. The courts below, therefore, rightly held that on 12.10.1988, Surjan was owner in possession of 55 kanals and 19 Marlas and could , therefore, pass a valid title qua 14 Kanals to the respondents. It is further argued that as no question of law much less a substantial questions of law arises for consideration, the appeal be dismissed. Counsel for the appellants has framed the following questions of law:- “i) Whether the suit land is proved to be ancestral in nature in view of overwhelming evidence on record? ii) Whether Civil Court decree dated 12.10.1988 requires compulsory registration? iii) Whether Surjan was competent to suffer consent decree dated 12.10.1988 for the land of which he was not owner? iv) Whether civil court decree dated 12.10.1988 can confer better title than the one held by vendor Surjan?” I have heard counsel for the parties, and perused the impugned judgments. Surjan, the appellants' father was owner in possession of ½ share in agricultural land measuring 547 Kanals and 10 Marlas i.e. 273 Kanal and 15 Marlas as reflected in the jamabandi for the year 1966-1967. He suffered a consent decree dated 05.01.1970 transferring ½ share out of this land to his wife Smt. Murti Devi. The appellants filed Civil Suit No.627 of 1984 titled as Jai Parkash etc. vs. Surjan and Murti Devi, claiming 3/10 Regular Second Appeal No. 1217 of 2004 -5- share in 547 Kanals and 14 Marlas of land (described as 561 Kanals and 14 Marlas in this suit). As Jai Parkash and Murti Devi conceded their claim, the judgment and decree dated 20.09.1984 came to be passed declaring the appellants to be owners of 3/10 share in the entire land measuring 561 kanals and 14 marlas. The appellants primarily contend that as after these decrees, Surjan was not left with any tangible interest in land, he could not suffer the collusive decree dated 12.10.1988, transferring 14 Kanals to the respondents. The first question of law framed by counsel for the appellants is whether the suit land is ancestral. The courts below have held that as the suit land devolved upon Surjan from his brother, by Mutation No.866 dated 09.10.25, and not from his father or grandfather, it did not partake the nature of ancestral property. Counsel for the appellants has failed to advance any argument or refer to any evidence that would detract from the correctness of this finding. Even otherwise, I find no reason to hold that the land is anything other than the self acquired property of Surjan. Consequently, the first question is answered by holding that the appellants have failed to prove that the suit land is ancestral. The second question is whether the decree dated 12.10.1988 requires compulsory registration. The trial Court as also the first appellate court have negatived this plea by holding that as the suit land was the exclusive property of Surjan, the appellants have no locus standi to raise this plea. I find no error in the view adopted by the courts below as Surjan could deal with his property in any manner he deemed appropriate. Surjan alone could challenge the legality of the decree but as Surjan has chosen not to challenge the correctness of the decree dated 12.10.1988, the findings recorded by the courts do not require interference. The other questions namely no.3 and 4 can be dealt with together. As referred to in the narrative of facts, Surjan was owner in Regular Second Appeal No. 1217 of 2004 -6- possession of ½ share of 547 kanals and 10 marlas, he suffered a collusive decree dated 05.01.1970 transferring ½ share out of his holdings in favour of Smt. Murti Devi. The appellants, filed a suit against Surjan and Murti Devi, alleging that they are owners of 3/10 shares out of 561 Kanals and 10 Marlas of land. The suit was decreed and the appellants became owners of 3/10th share out of the land owned by Surjan and Murti Devi. The argument that after the decrees of 1970 and 1984 Surjan was not left with any land, that he could transfer to the respondents was considered and rejected by the courts below. It would be appropriate to reproduce a relevant extract from the trial court's judgment. “Ram Kishan deposed even to the extent that Surjan transferred 3/10 share of the land in favour of his children and rest of the land remained in his hand. If we closely scrutinise the statement of Jai Parkash PW1, then it would be noticed that even after transferring the land in favour of the plaintiffs in the year 1984. Surjan remain owner of the agricultural land to some extent. In cross-examination, it is admitted by PW1 that after transferring 18 1/4 killas of land in favour of Murti Devi, Surjan remained owner of 18 1/ 4 acres. He further stated that after transferring the land in favour of the plaintiffs, he does not know how much land remained in the hands of Surjan Singh. But one fact is admitted by him that even at the time of filing of the presuit suit, Surjan was owner of the land measuring 7/7/1/2 killas. Now let us examine from the revenue record that whether Surjan Was owner of the land at the time of suffering the decree in favour of defendants no.1 and 2. If we peruse Jamabandi for the Regular Second Appeal No. 1217 of 2004 -7- year 1991-92 Ex.P14 and Ex.P15, it reflects that Surjan son of Badlu was owner to the extent of 33837 share out of 67674 in khewat no.255 khatoni no.351 and Ex.P15 reflects that the land comprised in Khewat No.257 was 55 kanals 19 marlas. Surjan transferred his 1/4th share of 55K-19 Marlas in favour of defendants No.1 and 2 by virtue of impugned judgment and decree Ex.P16 and Ex.P17. So, the revenue record clearly indicates that at the time of passing of the decree in favour of defendants no.1 and 2, Surjan was owner of the suit land.” The appellants have failed to advance any argument that would show that these conclusions are in any manner incorrect. It is not the appellants' case that the property transferred to Smt. Murti Devi, their mother was excluded from the decree dated 20.09.1984. If this property had been excluded the appellants may have been correct in asserting that Surjan was not left with any interest in the suit land. By including the land belonging to Murti Devi, the appellants claimed and were granted a decree of 3/10 share with respect to the property of Surjan and Murti Devi, leaving the balance land with Surjan. It is, therefore, apparent that after suffering the collusive decrees of 1970 and 1984, Surjan was owner of 55 kanals and 19 marlas, which he validly transferred to the respondents. In view of what has been stated hereinabove, I find no error of jurisdiction or of law as would raise a substantial question of law. The present appeal is dismissed. July 02,2009 (RAJIVE BHALLA) nt JUDGE