RSA No.3872 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.3872 of 2003 Date of Decision : 26.10.2009 Narain Devi and others .....Appellants Vs. Jai Narain and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Kulvir Narwal, Advocate for the appellants. Mr.Rakesh Nehra, Advocate for the respondents. .... RAJIVE BHALLA, J (Oral) The appellants challenge judgements and decrees dated 1.12.1999 and 27.1.2003,, passed by the Civil Judge (Junior Division), Rohtak and the Additional District Judge, Rohtak, partly decreeing the suit filed by the respondents and dismissing their appeal. The suit land was owned by one Sukh Chand, who had five sons and one daughter. He executed a registered will dated 29.6.1979, bequeathing 49 kanals 8 marlas of his property to Jai Dayal. After the demise of Sukh Chand, the respondents filed Civil Suit No.517 of 1981. During the pendency of the suit, a compromise came to be effected, whereby each brother was allotted 56 kanals of land out of the land belonging to their father. On the basis of the compromise, the Senior Sub Judge Rohtak, recorded the statements of the parties and recorded a RSA No.3872 of 2003 2 judgement dated 7.9.1984, which reads as follows :- “ The learned counsel for the plaintiff has given up defendant no.3 as unnecessary and, therefore, the name of the defendant no.3 be struck of from the heading of the plaint. Parties have arrived at a compromise. Statements of the parties have been reduced into writing. Parties have also filed written compromise Ex.C.1. Suit of the plaintiffs is hereby decreed in accordance with the terms and conditions mentioned in the compromise Ex.C.1, which shall form a part of decree. Parties are left to bear their their own costs. A decree sheet be prepared accordingly and the file be consigned to records room.” On the basis of this compromise, the Senior Sub-Judge, Rohtak, drew up a decree dated 7.9.1984. The operative of the decree reads as follows :- “Claim for possession to the effect that the plaintiff are owners in possession of 3/5 share in equal shares” of the agrl. Land comprised in Khewat Khatoni no.144 killa Nos. 56/3(4-18), 8(8-0) 9/1(4-12), 72/6(8-0) 10(8-0) 11 (8-0), 92/7(7-18) total area 49 kanal 8 marlas situated in village Balab the. & Distt. Rohtak. Plaint presented on 19.9.81. This suit coming on this day for final disposal before me (Shri N.C. Nahata, HCS, Senior Sub Judge, Rohtak) in RSA No.3872 of 2003 3 the presence of Shri Chander Singh Dalal Adv. For the plaintiffs and Shri O.P. Gupta, Adv. For the defendants. It is ordered that the suit of the plaintiff is hereby decreed in accordance with the terms and conditions mentioned in the compromise Ex.C1, which shall form a part of decree. Parties are left to bear their own costs.” It appears that the appellants disavowed the compromise and the decree, compelling the respondents to file a suit for declaration with a consequential relief of a permanent injunction, challenging the legality of the will dated 29.6.1979. The respondents also prayed that Jai Dayal be restrained from alienating the land bequeathed to him vide will dated 29.6.1979. In addition, the respondents prayed that Jai Dayal be retrained from interfering with their possession over the land, that had fallen to their share in Civil Suit No.517 of 1981 decided on 7.9.1984. Jai Dayal since deceased and now represented by the appellants filed a written statement denying the compromise, the passing of the decree dated 7.9.1984 and in turn asserted that the will dated 29.6.1979 is legal and valid. On the basis of the pleadings, the trial court framed the following issues :- “1. Whether the Will executed in favour of the defendant No.1 and mutation No.571 on its basis are null and void ? OPP. 2. Whether the plaintiff is entitled to the injunction as prayed for ? OPP. 3. Whether the suit is not maintainable ?OPD. 4. Relief.” RSA No.3872 of 2003 4 As the plaintiffs/respondents admitted the execution of the will, the trial court upheld the execution of the will dated 29.6.1979. However, with respect to the compromise and the decree dated 7.9.1984, passed in Civil Suit No.517 of 1981, the trial court held that Jai Dayal is bound by this compromise and as a consequence, decreed the suit as prayed. Aggrieved by the aforementioned order, the appellants filed an appeal. Vide judgement and decree dated 27.1.2003 the Additional District Judge, Rohtak dismissed the appeal. Counsel for the appellants submits that the compromise Mark C-1 has to be rejected, as it has not been proved in accordance with the provisions of the Evidence Act. It is further argued that the compromise Mark C-1 and the judgment and decree dated 7.9.1984, do not deal with the ownership but relate to separation of possession and therefore, the courts below had no jurisdiction to pass the impugned judgements and decrees. It is also argued that as the will dated 29.6.1979 has been held to be legal and valid, the courts below should have dismissed the suit instead of placing reliance on the compromise and the judgement and decree dated 7.9.1984. It is further pointed out that as the entire suit land, which is subject matter of the compromise Mark C-1 and the decree dated 7.9.1984 has not been included in the present suit, the courts below could not have granted an injunction with respect to the entire land that originally belonged to Sukh Chand. It is further argued that as the respondents are not in possession of any portion of the suit land, the suit should have been summarily dismissed. The last argument advanced by counsel for the appellants is that the compromise was never acted upon and it is for this reason that the respondents are not in possession of any portion of the land originally RSA No.3872 of 2003 5 owned by Sukh Chand. It is submitted that in view of the errors committed by the courts below, the following substantial questions of law arise for consideration. “A. Whether findings on issue no.2 in favour of the plaintiffs are perverse as the Killa Nos. in Mark A and the plaint of the present suit differs from each other ? B. Whether the property devolved upon the appellant by will held by both the courts below to be validly executed could be transferred by unregistered compromise decree ? C. Whether Mark A alleged compromise could be read in evidence without examining the witness to the same or without examining the hand writing and finger print expert when the predecessor of the appellants in written statement has denied the execution of the same ? D. Whether the Suit was maintainable challenging the will dated 29.6.1979 in the year 1991 or barred by Limitation when the knowledge was admittedly acquired in the year 1981 ? Counsel for the respondents, on the other hand, submits that though the compromise has been assigned a mark instead of an exhibit number, it cannot be ignored as it forms a part of the decree dated 7.9.1984, which has been duly exhibited. It is further submitted that a perusal of the plaint, particularly the prayer clause, leaves no manner of doubt that the entire property originally owned by Sukh Chand has been RSA No.3872 of 2003 6 included in the suit. It is further argued that the compromise Mark C-1 and the decree dated 7.9.1984, clearly record that parties are owners in possession of the shares, as determined in the compromise Mark C-1. The appellants, therefore, cannot allege that the compromise Mark C-1 and the decree dated 7.9.1984 relate to possession alone. It is further submitted that the fact that the will has been held to be valid is irrelevant, as the compromise Mark C-1 and the judgement and decree dated 7.9.1984 superseded the will. The appellants, therefore, cannot draw any benefit from the fact that the respondents have admitted the execution of the will. It is also submitted that the respondents have no objection, if the appellants are allowed to deal with the property that has fallen to their share in the judgement and decree date 7.9.1984 in any manner, as they may deem appropriate. I have heard learned counsel for the parties, perused the impugned judgements, considered the arguments addressed by counsel for the parties and appraised the substantial questions of law. I find no reason to hold that the impugned judgments suffer from any error, as would raise a substantial question of law, much less the questions of law framed by counsel for the appellants. Admittedly, the entire land was owned by Sukh Chand. It is not denied that he executed a will dated 29.6.1979 bequeathing 49 kanals 8 marlas to the appellants. The dispute in the present case revolves around the compromise Mark C-I and the judgement and decree dated 7.9.1984. The appellants allege that no such compromise was effected or decree passed whereas the respondents claim that pursuant to the compromise and the judgement and decree, parties agreed that the entire property owned by RSA No.3872 of 2003 7 Sukh Chand would be owned and possessed by them in accordance with the share holdings set out in the compromise Mark C-1. Both the trial court and the first appellate court are concurrent in their opinion that the compromise and the judgement and decree dated 7.9.1984 reflect a legal and valid distribution of the estate of Sukh Chand amongst his sons. The argument that as the compromise has not been proved in accordance with law, it cannot be read into evidence is irrelevant, as the compromise forms an integral part of the judgement and decree dated 7.9.1984. The argument that the compromise and the decree do not confer ownership rights and merely allocate separate parcels of land for the purpose of possession, is factually incorrect. The decree dated 7.9.1984 commences with the words “claim for possession to the effect that the plaintiffs are owners in possession of 3/5th share in equal shares of agricultural land”. The appellants, therefore, cannot be heard to assert that the compromise and the decree do not relate to ownership. Another argument that the entire suit land has not been included disregards the positive averments in para 1 of the plaint and the relief clause, where a specific reference has been made to the entire property, left behind by Sukh Chand. Similarly the argument with respect to possession is not tenable, as the respondents are admittedly in possession of other portions of the suit land. This objection was apparently raised on the premise that the suit relates to land in possession of the appellants. The argument that the Will could not be discarded on the basis of an unregistered compromise decree, cannot be accepted. The compromise and the decree reflect a family settlement that does not require registration and even otherwise was recorded after the will came into operation. On the RSA No.3872 of 2003 8 question of limitation, suffice it to state that as the appellants have based their claim upon the compromise and the decree dated 7.9.1984 i.e. on the basis of title, the suit cannot be said to be barred by limitation. It is, therefore, apparent that the compromise Mark C-1 and the judgement and decree dated 7.9.1984 would govern the rights of the parties with respect to the property originally owned by Sukh Chand. As no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. 26.10.2009 (RAJIVE BHALLA) GS JUDGE