RSA No.2037 of 2000 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2037 of 2000 Date of decision: July 25, 2011. Harbhag Singh and another. .. Appellants VERSUS Nirbhey Singh and others. .. Respondents CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI * * * PRESENT Mr.Sukhpal Singh, Advocate, for Mr.Ajay Pal Singh, Advocate, for the appellants. Mr.Ram Lal Garg, Advocate, for the respondents. * * * M.M.S.BEDI, J (ORAL). This regular second appeal has been filed by defendant Nos.5 & 6, Harbhag Singh and Hardev Singh, aggrieved by the judgment and decree passed by the first appellate Court decreeing the suit of plaintiff No.1 Nirbhey Singh, declaring registered sale deed dated 27.12.1978, executed by defendant No.7 (respondent No.6), the father of Nirbhey Singh registered on 28.12.1978, without consideration and legal necessity and as such illegal, null and void qua the rights of the plaintiff. Lal Singh, defendant No.7 (respondent No.6), had . . . 1. RSA No.2037 of 2000 sold 9 kanals 7 marlas land being 1/32 share of 299 kanals 6 marlas of land mentioned in the heading of the plaint for a sum of ` 7,000/-. It is pertinent to observe here that in the same suit plaintiff No.1 had challenged the validity of another sale deed dated 24.05.1981 regarding 16 kanals of land executed by same defendant No.7 (respondent No.6), Lal Singh, in favour of defendant Nos.1 to 4 (Mohinder Singh, Joginder Singh, Gurjant Singh and Hansa Singh). The suit regarding said sale deed dated 24.05.1981, has been dismissed by the trial Judge, the lower appellate Court as well as by the High Court in RSA. So far as sale deed dated 27.12.1978, executed by Lal Singh, defendant-respondent, in favour of defendant Nos.5 & 6—appellants is concerned, though the suit of Nirbhey Singh son of Lal Singh was dismissed ex parte against the appellants, the lower appellate Court vide its judgment and decree dated 16.04.1999, set aside the sale deed dated 27.12.1978, EX.P18, holding that the appellants (defendant Nos.5 & 6), have failed to prove that the said sale deed was not proved to be for consideration or for legal necessity being agricultural ancestral coparcenary property in the hands of defendant No.7, Lal Singh. The short question which is required to be determined in the present second appeal is whether the judgment and decree dated 16.04.1999, passed by the Additional District Judge, Sangrur, allowing the appeal of plaintiff-respondent No.1, Nirbhey Singh qua defendant Nos.5 & 6 (the present appellants), holding the sale deed dated 27.12.1978, as null and void, without . . . 2. RSA No.2037 of 2000 issuing any notice to the appellants in appeal or serving them, is not illegal and vitiated, warranting interference in the second appeal? Since the sale deed dated 24.05.1981, executed by defendant No.7, in favour of defendant Nos.1 to 4, has been held to be valid by the Courts below as well as in RSA No.2252 of 1999, decided on 11.01.2000, the present appeal is being decided without any reference to the pleadings, evidence and findings regarding the sale deed dated 24.05.1981 for the purpose of convenience. In the present appeal, a reference will be made only to the pleadings, evidence, proceedings and the validity of findings regarding sale deed dated 27.12.1978, registered on 28.12.1978, executed by defendant No.7, Lal Singh in favour of defendant Nos.5 & 6, the present appellants. Plaintiff-respondent No.1, filed a suit for possession of land measuring 9 kanals 7 marlas being 1/32 share in 299 kanals 6 marlas against the appellants-defendant Nos.5 & 6 and others, challenging the sale deed dated 27.12.1978 for a sum of ` 7,000/-, against defendant Nos.5 & 6, the present appellants, pleading that the suit land was joint Hindu property and defendant No.7, father of the plaintiff, was man of extravagant habits and addicted to liquor and opium. He alienated the land in dispute under the influence of intoxicants to defendant Nos.5 & 6, through the registered sale deed. He did not receive any money and alienated the land in dispute and deprived the plaintiff from inheriting the same. It was claimed that plaintiff-respondent No.1 and defendant No.7 (respondent No.6), Lal Singh are governed by their personal . . . 3. RSA No.2037 of 2000 law, in the matters of inheritance and succession and defendant No.7 (respondent No.6) was not competent to alienate the suit property without any legal necessity and consideration and the sale deed is illegal, null and void not binding on the rights of the plaintiff. The defendants-appellants had not appeared before the trial Court presuming that they had been served by Munadi and affixation. Though the appellants were ex parte, yet the trial Court dismissed the suit of plaintiff-respondent No.1, holding that the sale deed dated 27.12.1978, was valid. Issue Nos.1 & 2, as framed by the trial Court were as follows: - 1. Whether the sale deeds dated 24.05.1981 and 27.12.1978, executed by the defendant No.7, in favour of the defendants No.1 to 4 and 5 to 6 are without necessity and consideration, null and void not binding against the rights of the plaintiff and are liable to be set aside?OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to the decree for possession as prayed for?OPP. The Court of the Senior Sub Judge, Sangrur, vide judgment dated 23.11.1994, had decided issue Nos.1 & 2, and dismissed the suit of plaintiff-respondent No.1 for the following reasons: - 1. The subject matter of the sale deeds being coparcenary property of the plaintiff cannot be disputed but sale deed dated 29.12.1978, has not . . . 4. RSA No.2037 of 2000 been placed on record by the plaintiff-respondent. Defendant Nos.5 & 6, in whose favour the sale deed stands executed were proceeded against ex parte. Therefore, it was the duty of the plaintiff to produce in evidence copy of the sale deed so as to find out its contents. The plaintiff having not cared to do so, it cannot be concluded that the sale deed was without consideration. 2. The sale deed dated 24.05.1981, was held to be for consideration and for legal necessity as vendor defendant No.7, Lal Singh, has not contested the suit and defendant Nos.1 to 4, who were vendors were deprived of their valuable rights to elicit truth from Lal Singh. It was also observed that the absence of Lal Singh was intentional and it was established beyond doubt that he was instrumental in the prosecution of the case filed by his son, his wife Jasmer Kaur, guardian of the plaintiff, had stated that Lal Singh had been accompanying her in the Court compound being her son-in-law and residing with her. The trial Court also considered the conduct of Lal Singh to be dubious by observing that he had been contesting an application under Section 111 of the Punjab Land Revenue Act, regarding partition of the land filed by his brother Gurdev Singh and his sons against Lal Singh and others in the Court of Assistant Collector First Grade, Sangrur and it was represented by none else but by Shri Ram Lal Garg, Advocate, a counsel representing Nirbhey Singh, the plaintiff in the present proceedings also. . . . 5. RSA No.2037 of 2000 3. The trial Court also held that no proof had been placed on record by the plaintiff regarding his date of birth which was crucial for the purpose of challenging the validity of the sale deeds especially the sale deed dated 27.12.1998 as Jasmer Kaur in her examination-in-chief stated that Nirbhey Singh was 13/14 years old when her statement was recorded on 27.07.1993. Taking the said statement to be true plaintiff-respondent would have born in the year 1980-81. Gulzara Singh, DW.3, in his cross-examination, had stated the age of Nirbhey Singh as 8/9 years at the time of his examination. The trial Court in view of the said reasoning arrived at a conclusion that the sale deed dated 27.12.1978, had been executed prior to the birth of Nirbhey Singh. Therefore, he had no locus standi to challenge the sale deed on the ground that it was without consideration or without any legal necessity. The above said findings of the trial Court have not been seriously considered by the lower appellate Court while holding that the registered sale deed dated 27.12.1978, is without consideration and without legal necessity. When an appellate Court sets asides any finding of lower Court without giving reasons and ignoring the important evidence, the said finding being vitiated can always be interfered with by the High Court in the second appeal. Grievance of defendant Nos.5 & 6,-appellants is that they were not served before the trial Court and they were proceeded against ex parte. . . . 6. RSA No.2037 of 2000 I have perused the interim orders of trial Court dated 19.04.1991, 27.05.1991, 29.07.1991 and 26.09.1991 and I am satisfied that the trial Court has not recorded its satisfaction that defendant Nos.5 & 6, have actually been served by Munadi and affixation. The interim orders of the trial Court w.e.f., 19.01.1991, are reproduced as under: - “Present Sh.Ram Lal Garg, Adv. for the plaintiff. Received by entrustment. It be registered. Defendants be summoned for 06.03.1991 by way of affixation on PF. Sd/- SJIC, Sangrur, 19/1/91. Present Counsel for the plaintiff. Defendants are not served. They be again summoned for 20.04.91 by way affixation. Summons be also sent through registered post. PF/RCs be filed within 4 days. Sd/- Addl.SJIC,Sgr., 6/3/91. Present Counsel for the plaintiff. Defendants could not be summoned for want of PF and RC. The plaintiff is directed to file . . . 7. RSA No.2037 of 2000 the PF and RC within 2 days and then defendants be summoned for 21.5.91. Sd/- ASSJ,, 19/4/91. Present Counsel for the plaintiff. File taken up today as I remained on C. Leave upto 25.5.91. Defendants be again summoned for 29.7.91 on payment of PF/RC within 3 days. Sd/- ASSJ,Sgr., 27/5/91. Present Counsel for the plaintiff. Summons not received back. I am satisfied that the defendants cannot be served through ordinary process. Hence the defendants be summoned through Munadi and affixation on payment of PF etc. for 26.6.91. Sd/- ASSJ, Sgr., 29/7/91. Present Counsel for the plaintiff. Sh.Joginder Singh, Adv., for defendant Nos.1, 2 & 4. Defendant Nos.3, 5, 6 & 7, not appeared despite the fact that they were summoned through Munadi and affixation. As such they are proceeded against ex parte. W/s on behalf . . . 8. RSA No.2037 of 2000 of defendants No.1, 2 & 4, be filed on 24.10.91. Sd/- ASSJ, 26/9/91.” A copy of the report of Process-Server, has been placed on record as Annexure A-1/T, which reads as follow: - “It is requested that as per the order of learned Court I enquired about Sh.Mohinder Singh 2. Joginder Singh, 3.Gurjant Singh, 4. Hansa Singh sons of Sarwan Singh, 5.Harbhag Singh, 6.Hardev Singh sons of Amar Singh, 7.Lal Singh son of Bachan Singh after going Bhawanigarh. But no one was found because Bhawanigarh is a very big town. The report as such is being present. Sd/- Jarnail Singh 19.2.1991 LTI Pritam Singh witness Bhawanigarh. Incomplete address” So far as the report of Munadi is concerned, it has been attached with the appeal as Annexure A-2/T, which reads as follow: - “In the Court of Sh.G.S.Sewk, PCS,ASSJ, Sangrur. Nirbhai Singh Vs. Mohinder Singh etc. . . . 9. RSA No.2037 of 2000 1.Mohinder Singh, 2.Joginder Singh, 3.Gurjant Singh, 4.Hansa Singh ss/o Sarwan Singh, 5.Harbhag Singh, 6.Hardev Singh ss/o Amar Singh, 7.Lal Singh s/o Bachan Singh, all r/o village Bhawanigarh. Note:- Service be effected through Munadi or by way of affixation. Sir, “It is requested that after paying the fees to Chowkidar, Bhawanigarh, Munadi was got conducted. Copies of summons were got affixed at the house. Report is presented. Sd/-” On the basis of above said reports, it is argued that the appellants had not been served and that they were not aware of the proceedings. The particulars of defendants-appellants has been vaguely given by the plaintiff as a resident of village Bhawanigarh, Sangrur. A finding of fact has been given by the trial Court that defendant No.7, Lal Singh had been residing with plaintiff himself and his guardian Jasmer Kaur, who happens to be the mother-in-law of Lal Singh defendant No.7. The report of Process Server dated 09.02.1991, is indicative of the fact that Bhawanigarh is a big town as such, none of the defendants could be found by him. If the Process Server had not been able to find out the addresses, it cannot be presumed that munadi and affixation had been done at . . . 10. RSA No.2037 of 2000 the houses of the defendants. It is also pertinent to observe here that when the appeal was filed by plaintiff-respondent No.1, the lower appellate Court having been entrusted with the appeal passed the following interim orders: - “Present Counsel for the appellant. Received by entrustment. To come up for preliminary hearing on 05.0.1995. Sd/- ADJ, Sgr., 3/1/95. Present Counsel for the appellant. The appeal be registered. Let, notice be issued to the respondent Nos.1 to 4, for 6.2.95 on the question of admission. Sd/- ADJ, Sgr., 5/1/95. Present Counsel for the appellant. The learned Presiding Officer is on leave today. As directed by him, the file is adjourned to 22.2.95. For that date, notice be issued to respondent Nos.1 to 4, on old PF. Present Counsel for the appellant. Sh.Joginder Singh Kherri, Adv. Has appeared on behalf of the respondents. Heard. AS there are arguable points in the appeal, the same is admitted. Trial Court records be summoned for 20.4.95. Sd/- ADJ, Sgr., 22/2/95. . . . 11. RSA No.2037 of 2000 Present Counsel for the parties. Records not received. Urgent reminder be issued for 30.5.95. Sd/- ADJ, Sgr., 20/4/95. Present Counsel for the parties. Records received. Case is complete. To come up for arguments on 13.11.1995. Sd/- ADJ, Sgr., 30/5/95.” The above said orders again indicate that the defendants-appellants had not been served. There is no power of attorney of Shri Joginder Singh Kheri, Advocate, on behalf of defendant Nos.5 & 6-appellants. Plaintiff-respondent had filed RSA No.2253 of 1999, which was dismissed on 11.01.2000 by R.L.Anand J. Even in said appeal, no notice had been served upon the present defendants-appellants. Defendant Nos.5 & 6-appellants claim that they came to learn about the proceedings against them when warrants of possession were passed in favour of plaintiff-respondent No.1, regarding the ex parte decree obtained by plaintiff -respondent No.1, from the lower appellate Court. The main grievance of the appellants is that no opportunity has been given to the defendants-appellants to get a . . . 12. RSA No.2037 of 2000 decision on merits. On merits, it has been argued that Nirbhey Singh was not born on 27.12.1978, when the sale deed in their favour had been executed; a copy of the sale deed had not been even produced by the plaintiff-respondent; the sale deed by Lal Singh was for consideration and for legal necessity; Lal Singh has not been produced as a witness to state that sale deed was without consideration; and the suit had been filed by plaintiff Nirbhey Singh in collusion with his father Lal Singh taking vague grounds. Shri Ram Lal Garg, learned counsel for plaintiff- respondent No.1, has submitted that the appeal filed by the appellants is barred by time and that neither any application for condonation of delay has been filed nor an affidavit has been filed. He referred to the provisions of Order 41 Rule 3A CPC, to argue that when appeal is presented after expiry of period of limitation, it has to be accompanied by an application supported by an affidavit. He has submitted that the defendants-appellants had been duly served by Munadi and affixation. They had not taken any steps to get the ex parte decree set aside and that they were not even required to be served before the lower appellate Court being proforma respondents. As they were proceeded against ex parte before the trial Court, it was not incumbent upon the lower appellate Court to serve them, they being proforma respondents. He referred to Order 41 Rule 14 CPC, pertaining to the service of notice of date of hearing of appeal. Reliance was placed on Order 41 Rule 4 CPC, to contend that it was . . . 13. RSA No.2037 of 2000 not necessary to serve notice of any proceedings of appeal on any respondent unless he has appeared and filed address for service in the Court of first instance. Mr.Ram Lal Garg, Advocate, has also argued that by an order dated 24.04.2000, the possession of the property in dispute had been obtained by Nirbhey Singh, regarding 1/32 share and symbolic possession had been taken by the plaintiff-defendant No.1, on 24.04.2000, as such, the appeal deserves to be dismissed. I have heard the counsel for the parties and carefully gone through the judgments of the Courts below as well as the record of the trial Court. The substantial question of law which seems to arise for adjudication is whether a registered sale deed dated 27.12.1978, executed in favour of the appellants (defendant Nos.5 & 6), could have been set aside by the lower appellate Court without giving an opportunity to the vendees to prove that the sale was with consideration and for legal necessity? Whether finding of the lower appellate Court that the sale deed dated 27.12.1978 is without consideration and without legal necessity is vitiated having not considered the reasoning given by the trial Court and without appreciating that no opportunity has been given to the defendant Nos.5 &6-appellants to establish that the sale deed was with consideration and was for legal necessity, on the basis of material available on the record? . . . 14. RSA No.2037 of 2000 So far as the preliminary objection raised by counsel for the respondent, Mr.Ram Lal Garg, that the appeal has been filed on 17.05.2000, whereas the judgment and decree passed by the lower appellate Court was dated 16.04.1999, the same being time barred is concerned, the defendants-appellants has submitted an application under Section 5 of the Limitation Act read with Section 151 CPC, for condonation of delay of 398 days in filing of the appeal, taking up a specific plea that the appellants were neither served before the trial Court nor before the lower appellate Court as such, they were not aware of the judgments and decrees passed by the Courts below and that they came to know about the decrees passed against them when the warrants of possession were issued by the executing Court. Thereafter, the appellants have applied for the copies of the judgment and decree as well as the jimni orders passed by the Courts below, as such, the appeal has been filed in the High Court, on coming to know about the decrees for possession passed against them. The application is supported by the affidavit. The interim orders passed by the Courts below which have also been reproduced hereinabove have been mentioned in the grounds of appeal. Taking into consideration, the interim orders, the report of the Process Server and the report of munadi, this Court is of the considered opinion that the appellant had never been served as the plaintiff-respondent had failed to mention correct addresses of the defendants-appellants. The report of the Process Server dated 19.02.1991, clearly mentions that Bhawanigarh being a . . . 15. RSA No.2037 of 2000 big town, none of the defendants could be found. In view of the report of Process Server dated 19.02.1991, it was the duty of the trial Court to require the plaintiff to furnish the correct and complete address of the defendants and attempt should have been made to effect service at the correct address. The order of service of respondents at the vague address by Munadi and affixation was a patent illegality and irregularity. The trial Court has observed in its judgment that the vendor defendant No.7, Lal Singh was being represented by the counsel for the plaintiff Mr. Ram Lal Garg, in partition proceedings. It appears that earnest endeavour was not made by either the plaintiff, Courts or the counsel for the plaintiff to provide correct address of the defendants in order to enable the Court and the Process Server to reach the defendants especially defendant Nos.5 & 6, the appellants. In view of above circumstances, there is sufficient ground to condone the delay in filing of the appeal. A copy of order dated 22.05.2000, passed by this Court indicates that delay in filing of the appeal had specifically been condoned by M.L.Singhal J. Thus, the argument of Mr.Ram Lal Garg, Advocate, that the appeal is not maintainable having been filed at the belated stage, delay having already been condoned, the contention of Mr.Ram Lal Garg, Advocate, in context to the provisions of Order 41 Rule 3A CPC, is liable to be rejected. The suit of plaintiff-respondent No.1, was dismissed by the trial Court by giving cogent reasons. A finding of fact has been . . . 16. RSA No.2037 of 2000 given by the trial Court that neither the original sale deed dated 27.12.1978, has been produced on record nor an opportunity had been given to defendant Nos.5 & 6 i.e., the present appellants to prove that it was not without consideration or was for legal necessity. The said finding has been reversed by the lower appellate Court without even making an attempt to serve the present defendants- appellants. In case the lower appellate Court was at any stage of proceedings satisfied that present defendant Nos.5 & 6, who were respondents before the lower appellate Court were proforma respondents, a specific order was required to be passed by the said Court expressing the satisfaction that they being proforma respondents are not required to be served. Since a registered sale deed in favour of defendant Nos.5 & 6, has been set aside without giving any opportunity to them, the finding of lower appellate Court is vitiated. The lower appellate Court has not given any finding on the fact whether the plaintiff was actually born on 27.12.1978 when the sale deed had been executed by his father defendant No.7. The mala fide of defendant No.7, in not appearing before the Court to prove that the sale was without consideration was most material factor which was required to be considered by the lower appellate Court. The finding of the trial Court dismissing the suit of plaintiff-respondent No.1, has been casually set aside by the lower appellate Court. I have carefully gone through the judgment of the trial Court which has arrived at a firm finding of fact regarding sale . . . 17. RSA No.2037 of 2000 deed dated 27.12.1978, and dismissed the suit of the plaintiff- respondent No.1, holding that the plaintiff had intentionally not produced a copy of the said sale deed and had not produced the seller Lal Singh i.e., defendant No.7, who had knowledge about the proceedings and was being represented by the same counsel in partition proceedings, who had represented the plaintiff in the suit. The collusion between the plaintiff and defendant No.7, is apparent on the record. The finding of the lower appellate Court is thus, vitiated and deserves to be set aside. Plaintiff-respondent No.1, was required to establish his date of birth and to establish that the property was joint Hindu family coparcenary property in the hands of Lal Singh and that he had born on 27.12.1978 and had acquired a right in the property by birth when the sale deed was executed. A finding of fact arrived at by the trial Court has been casually and wrongly set aside by the lower appellate Court without giving an opportunity to the appellants, as such, the judgment of the lower appellate Court is vitiated and deserves to be set aside. The judgment of the trial Court is hereby restored. The substantial questions of law are