R.S.A.No. 3850 of 1998 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3850 of 1998 (O&M) Date of decision: 30.10.2009 Malkiat Singh and others ......Appellants Versus Sohan Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.RKS Brar, Advocate, for the appellants. Mr.K.S.Dadwal, Advocate, for respondent No.1. **** SABINA, J. Plaintiff Sohan Singh filed a suit for declaration, permanent injunction and possession which was decreed by the Civil Judge (Jr.Divn.), Jalandhar vide judgment and decree dated 11.1.1997. In appeal, the said judgment and decree were upheld by the Additional District Judge, Jalandhar vide judgment and decree R.S.A.No. 3850 of 1998 (O&M) 2 dated 19.11.1998. Hence, the present appeal by defendants No.1 to 3. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The facts, giving rise to this appeal, in brief are that Sohan Singh filed suit against Malkiat Singh and others for declaration that decree dated 29.11.1990 in suit No.377 of 1990, Malkiat Singh vs. Bhagat Singh of Additional Senior Sub Judge, Jalandhar, regarding land fully described in the heading of the plaint is illegal, null and void, collusive and not binding on the rights of the plaintiff with consequential relief of joint possession to the extent of 1/4th share and for permanent injunction restraining defendant No.1 from alienating the suit land on the grounds that the land was owned by Ram Singh, father of Bhagat Singh father of plaintiff and defendants and it was joint Hindu Family property and co-parcenary of Bhagat Singh and his sons have equal shares in it. It is further alleged that Bhagat Singh was not competent to alienate the same and after his death it has devolved upon the plaintiff and defendants in equal shares. However, defendant No.1 Malkiat Singh has got sanctioned the mutation in his favour on the basis of decree dated 29.11.1990 of Additional Senior Sub Judge. R.S.A.No. 3850 of 1998 (O&M) 3 It is claimed that the decree is null and void and not binding on the rights of the plaintiff because the land, in dispute, was ancestral and Bhagat Singh was in competent to transfer the same in favour of the plaintiff. It is further alleged that no family settlement ever took place and the decree has been passed on the back of the plaintiff and is the result of collusion between Malkiat Singh and Bhagat Singh. Since the defendants refused to admit the claim of the plaintiff, hence, the suit. 3. Defendants no.1 to 4 contested the suit and in the written statement denied the allegations of the plaintiff and inter alia pleaded that Bhagat Singh was exclusive owner of the property and constituted Joint Hindu Family with defendant Malkiat Singh and in the partition, the land, in dispute, fell to the share of Malkiat Singh and on that basis decree has been rightly passed and mutation has also been rightly sanctioned. It was denied that the land, in dispute, was co-parcenary property. It was further alleged that the plaintiff was aware of the decree and the mutation and decree has been passed by the competent officer and is binding on the plaintiff. The pleas that the suit was bad for mis-joinder of parties; that it was barred by time; that the plaintiff was estopped by his own act and conduct from filing the suit; and that he R.S.A.No. 3850 of 1998 (O&M) 4 has no locus standi as were also raised.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for declaration as prayed for? OPP 2. Whether the plaintiff is entitled for permanent injunction? OPP 3. Whether the plaintiff is entitled for the joint possession to the extent of 1/4th share for the plaintiff and 1/4th each for the defendant No.2 and 5 of the land measuring 48 kanals 8 marlas? OPP 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether suit is bad for mis-joinder of necessary parties? OPD 6. Whether the suit of the plaintiff is barred by time? OPD 7. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 8. Relief. ” Learned counsel for the appellants has submitted that there was no material on record that the suit property in the hands of Bhagat Singh was ancestral in nature. In a family settlement, the suit property had come to Malkiat Singh. Bhagat Singh had suffered a R.S.A.No. 3850 of 1998 (O&M) 5 consent decree in this regard and the said consent decree was as good as a decree on merits. The plaintiff had no locus standi to challenge the decree dated 29.11.1990. Learned counsel for respondent No.1, on the other hand, has submitted that in fact, there was no family settlement between the parties. Vide the collusive decree dated 29.11.1990, the entire property of Bhagat Singh had come to Malkiat Singh. The plaintiff was also son of Bhagat Singh. The plaintiff or his other brothers had not been impleaded as a party in the suit filed by Malkiat Singh. Since, the suit property was ancestral property in the hands of Bhagat Singh and thus, he could not suffer a decree regarding the same in favour of Malkiat Singh. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Admittedly, the land in dispute was owned by Ram Singh, grand father of the plaintiff and defendant No.1. Thereafter, it came to Bhagat Singh and his brothers after the death of Ram Singh in equal shares. In these circumstances, the Courts below rightly held that the suit property was ancestral property in the hands of Bhagat Singh. Bhagat Singh died on 6.2.1993. The impugned decree was passed on 29.11.1990 but no mutation was sanctioned in favour of defendant No.1 Malkiat Singh after the passing of the decree. The case of Malkiat Singh was that the land in question had come to him R.S.A.No. 3850 of 1998 (O&M) 6 in a family settlement. Admittedly, Bhagat Singh had 48 kanals 7 marlas of the land and the same came to Malkiat Singh on the basis of the impugned decree. There is nothing on record to suggest that the other children of Bhagat Singh also got some share from his property in a family settlement. Rather the entire land owned by Bhagat Singh came to Malkiat Singh by way of the impugned decree. The other children/heirs of Bhagat Singh were not impleaded as a party by Malkiat Singh at the time of filing of the suit. In a family settlement, a compromise or a family arrangement takes place between the contesting parties. Each party may relinquish certain claims and there is recognition of the right of others. The family settlement is arrived at to avoid conflict amongst the joint family members on the issue of their rights in the property and with a view to maintain peace and harmony in the family. However, in the present case, there could have been no family settlement as the entire land in the hands of Bhagat Singh has come to Malkiat Singh by way of the impugned decree. The said decree was collusive in nature because the suit was filed by Malkiat Singh to defraud the other legal heirs of Bhagat Singh. At the time of death of Bhagat Singh he left behind four sons namely Sohan Singh, Malkiat Singh, Joginder Singh and Surinder Singh and one daughter namely Rattan Kaur and his widow Ass Kaur. Although some of the legal heirs of Bhagat Singh had not challenged the impugned decree yet the same was liable to be set aside in a suit filed by one of the heirs of Bhagat R.S.A.No. 3850 of 1998 (O&M) 7 Singh. Both the Courts below, in the facts and circumstances of the present case, rightly held that the impugned decree was illegal,null and void. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 30, 2009 anita