Regular Second Appeal Nos.2165 & 2199 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal Nos.2165 & 2199 of 2006 Date of Decision:- 30.8.2011 Sukhcharan Singh and others ...Appellants Versus Pargan Singh ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Arun Jain, Senior Advocate with Mr.Jaivir S.Chandail, Advocate for the appellants. Mr.Amardeep Singh Gill, Advocate for the respondent. M ehinder S ingh S ullar , J . (Oral) As identical questions of law and facts are involved, therefore, I propose to dispose of above indicated two regular second appeals between the same parties, in respect of the same property in dispute, by way of this common judgment, in order to avoid the repetition. However, the facts and evidence have been extracted from RSA No.2165 of 2006 titled as “Sukhcharan Singh etc. Vs. Pargan Singh” for ready reference in this context. 2. The matrix of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeals and emanating from the record, is that Amar Singh son of Khazan Singh was the owner and in possession of the property in dispute. He executed a registered Will dated 31.3.1982 in favour of his three sons and his wife Beant Kaur. She was claimed to have predeceased her husband. After the death of Amar Singh in the year 1987, his three sons, namely, Pargan Singh respondent- plaintiff (for brevity “the plaintiff”), Sarwan Singh (since deceased), being represented by his LRs Sukhcharan Singh, Gursharan Singh & Jagroop Singh sons and Smt.Surinder Kaur widow, appellant Nos.1 to 3 & 5-defendant Nos.1 to 4 and Ajit Singh appellant No.4-defendant No.5 (for short “the defendants”) inherited Regular Second Appeal Nos.2165 & 2199 of 2006 -2- and became owners and in possession of the suit property to the extent of 1/3rd share each, in pursuance of the Will dated 31.3.1982, containing mode of partition. Plaintiff is residing in UK for the last about 40 years. 3. It is not a matter of dispute that in the wake of statement of plaintiff, earlier civil suits bearing Nos.66 and 182 of 1998 seeking decrees for possession by means of partition and civil suit bearing No.86 of 1998 for a decree of permanent & mandatory injunction filed by him against the defendants were dismissed as withdrawn, without seeking any permission to file the fresh suits on the same cause of action, by virtue of orders dated 30.7.1998 and 7.8.1998 (Ex.D7, Ex.D5 and Ex.D6) respectively. However, it was claimed in the present suit that those suits were withdrawn as the plaintiff was detained by the police and was forced to sign the agreement dated 29.7.1998 (Ex.D1) at the instance and under the pressure of the defendants. 4. Now plaintiff Pargan Singh again filed the present civil suit bearing No.396 of 1998 (in short “Ist suit”) seeking a decree for separate possession, by way of partition to the extent of 1/3rd share of the property in dispute, inter-alia pleading that he is unable to enjoy his share in jointness and asked the defendants to partition his share, but in vain. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of separate possession, by means of partition against the defendants, in the manner described hereinabove. 5. Sequelly, the plaintiff filed another civil suit bearing No.438 of 1998 (for short “2nd suit”) for a decree of permanent injunction, restraining the defendants from digging the earth or raising any construction in the land in dispute, situated in the revenue estate of village Burj Kandhari, Tehsil and District Nawanshahar on the same line of pleadings as contained in the earlier suit, as indicated hereinbefore. 6. The defendants contested the suits and filed the written statements, raising certain preliminary objections of, maintainability of the suits, jurisdiction, Regular Second Appeal Nos.2165 & 2199 of 2006 -3- cause of action and locus standi of the plaintiff. The factum of ownership and possession of Amar Singh over the suit property and the execution of the Will dated 31.3.1982 by him, was admitted. However, the case set up by the defendants, in brief in so far as relevant, was that the house in question was not in existence, during the life time of Amar Singh, but it was constructed by them (defendants) on the land in dispute after his death. The property in dispute was stated to had fallen to their share in oral family settlement and the plaintiff was compensated in this regard. All the co-sharers were claimed to have entered into an agreement dated 29.7.1998 (Ex.D1), on the basis of which, they are exclusive owners and in possession of their respective portions and the plaintiff has got no right, title or interest in it. In the same sequence, the defendants have denied the entitlement of the plaintiff in the land in dispute in the 2nd suit, in view of the writing (Ex.D1) of family settlement. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaints and prayed for dismissal of the suits. 7. Controverting the allegations contained in the written statements and reiterating the pleadings of the plaints, the plaintiff filed the replications. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the cases:- i) Whether the plaintiff is entitled for partition by means of separation of possession of the house, as detailed in the head note of plaint?OPP ii) Whether the suit of plaintiff is not maintainable?OPD iii)Whether the plaintiff has got no locus standi to file suit?OPD iv)Whether the plaintiff is barred by his acts and conduct to file the suit?OPD v) Whether the site plan, produced by plaintiff is wrong?OPD vi)Whether the suit is not properly valued for the purpose of Court fee and jurisdiction?OPD vii)Whether the suit is barred by principle of res judicata?OPD viii)Relief. 8. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. Regular Second Appeal Nos.2165 & 2199 of 2006 -4- 9. The trial Court decreed the Ist suit of the plaintiff and passed a preliminary decree, by virtue of impugned judgment and decree dated 14.3.2005. 10. Likewise, 2nd suit for permanent injunction was also decreed and the defendants were restrained from digging the earth or raising any construction in the land in dispute, by way of impugned judgment and decree of even date. 11. Aggrieved by the decision of the trial Court, the defendants (except Ajit Singh) filed two separate appeals, which were dismissed with costs as well, by the Ist Appellate Court, through the medium of separate impugned judgment and decree dated 28.3.2006. 12. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeals. That is how I am seized of the matter. 13. At the very outset, assailing the impugned judgment and decree of Ist appellate Court, the learned counsel for the appellant-defendants contended with some amount of vehemence that although the trial Court did not record the cogent reasons in decreeing the suit of plaintiff, but even the Ist appellate Court has decided the appeals in a very casual manner without adhering to the real controversy between the parties. The argument is that since the abadi land has already been partitioned between the parties, by means of mutual agreement (Ex.D1) and the provisions of Section 123 of the Punjab Land Revenue Act, 1887 (hereinafter to be referred as “the Act”) were not applicable to it (abadi land), so, the first appellate Court fell in grave error in ignoring the agreement only on the ground of non-compliance of Section 123 of the Act. The argument further proceeds that as the plaintiff did not seek any permission to file the fresh suit on the same cause of action, while withdrawing the earlier suits, vide orders (Ex.D5 to D7), therefore, he is precluded from filing the present suits, in view of bar under Order 23 Rule 1(4) CPC and the Courts below have wrongly placed reliance on the judgment of this Court in case Ram Sarup v. Sunder and others AIR 1984 NOC Regular Second Appeal Nos.2165 & 2199 of 2006 -5- 291(Punj. & Har.) 140 in this relevant connection. 14. Raising a variety of arguments, in all, according to learned counsel for the appellant-defendants that the judgment of Ist appellate Court is no judgment in the eyes of law, as it has not dealt with all the points involved in the appeals between the parties. Thus, he prayed for acceptance of the appeals. 15. Hailing the impugned judgment & decree of Ist appellate Court, on the contrary, learned counsel for respondent-plaintiff vehemently urged that the Courts below have rightly ignored the family settlement (Ex.D1) on account of non-compliance of Section 123 of the Act and since the cause of action of partition & permanent injunction is recurring, so, the Ist and 2nd suits filed by the plaintiff were maintainable. The contention is that as the Courts below have recorded the concurrent finding of fact, therefore, no ground for interference in the impugned judgments and decrees is warranted in these appeals. 16. Having heard the learned counsel for the parties, having gone through the records with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the impugned judgment and decree of first appellate Court cannot legally be maintained. 17. As is evident from the record that plaintiff filed the suit for partition by virtue of separate possession of the house comprised in Khasra No.57 (17 marlas) shown in red colour in the site plan, situated within the Lal Lakir and abadi of village Burj Kandhari, Tehsil and Distt.Nawanshahr. It has been specifically pleaded in the plaint that the plaintiff became owner and in possession of the property in dispute to the extent of 1/3rd share, in pursuance of the Will dated 31.3.1982, in which, mode of partition was proposed. As indicated earlier, the previously instituted suits filed by the plaintiff were dismissed as withdrawn in the wake of his statement, by means of orders (Ex.D5 to D7). Ex.D1 is the compromise deed between the parties, signed by the plaintiff and defendants except Ajit Singh, by way of which, they have partitioned their residential houses. Regular Second Appeal Nos.2165 & 2199 of 2006 -6- The plaintiff has duly signed the family settlement (Ex.D1) and attested by the witnesses. Ajit Singh has not challenged the factum of compromise, but the same was stated by the plaintiff to be under the pressure of the defendants. 18. Not only that, Ex.D2 is a copy of compromise deed dated 23.6.1998, wherein the factum of private partition was reiterated and it was also signed by the parties. The first appellate Court has, in a very cryptic manner, just brushed aside the entire evidence and ignored the family settlement (Ex.D1) & compromise (Ex.D2) only on the ground that the property has been shown as joint in the jamabandi (Ex.PJ) and the private partition has not been reported to the revenue officer under section 123 of the Act. 19. As regards the maintainability of the suits, the Ist appellate Court has only observed in its judgment dated 28.3.2006 (para 16) as under:- “Another point on which lot of stress was given by learned counsel for the appellants was that the respondent had filed suits on earlier occasions for partition and the same were got dismissed as withdrawn and so the respondent is estopped from bringing this suit, but I do not subscribe to this argument of learned counsel for the appellants because to seek partition is a recurring cause of action and the mere fact that the earlier suits were dismissed as withdrawn is no bar to the present suit and I am supported by Ram Sarup versus Sunder and others, A.I.R.1984-NOC-291 and, as such, learned counsel for appellants could not substantiate what illegality or irregularity has been committed by the trial court, while returning findings on issues No.2, 3 & 4 as well and the same are also confirmed.” 20. As is clear that in Ram Sarup's case (supra), it was observed that there is no quarrel with the proposition that a co-sharer may obtain partition whenever he chooses. If he withdraws such a suit, fresh suit would not be barred, but at the same time, it was also ruled that “if all the defendants or some of them pleaded that the plaintiff is not co-sharer or that the property is not of Hindu undivided family and belongs to them exclusively and in spite of those pleas the suit is got dismissed as withdrawn, then the subsequent suit for partition would be barred under O.23 R.1(3) of the Code, because in such a situation there is a dispute between the parties whether the plaintiff is entitled to claim partition.” The argument of learned counsel that these observations help the case of the Regular Second Appeal Nos.2165 & 2199 of 2006 -7- defendants, prima facie appears to have some force at this stage. 21. What is not disputed here is that the appeal is a continuation of the original suit and the Ist appellate Court is the final Court of fact and required to re- appraise the evidence. The regular second appeal can only be entertained by this Court if the case involves a substantial question of law, as contemplated under section 100 CPC and not otherwise. Similarly, Order 20 Rule 4 CPC postulates that the Ist appellate Court was required to write a statement of the case, the points for determination, the decision thereon and the reasons for such decision. In that situation in the instant case, the Ist appellate Court ought to have inter-alia specifically determined as to (i) whether the property in dispute is joint or it stood partitioned, (ii) whether the family settlement (Ex.D1) and compromise (Ex.D2) are valid and genuine or otherwise, (iii) whether the provisions of Section 123 of the Act are attracted to the partition of abadi land within the Lal Lakir and (iv) whether the plaintiff is precluded to file the present suits, in view of the mandate of Order 23 Rule 1(4) CPC, which were the moot points to be decided by it in order to decide the real controversy between the parties, but the Ist appellate Court has just ignored with impunity the judicial essential ingredients of deciding the appeal, as envisaged under Order 20 Rules 4 and 5 CPC in a very casual manner and on totally unintelligible grounds. 22. Possibly, no one can dispute with regard to the settled principle of law that a judicial determination of disputed facts has to be satisfactorily reached and decision of the Ist appellate Court must be supported and informed by most cogent reasons. The judgment of Court of fact (evidence) must be fair, clear, in the interest of fair play and must be confined and structured by rational and relevant evidence/material on record because the valuable rights of the parties are involved. All these essential ingredients are totally lacking in this case. A mere judgment deciding the matter in dispute, which is not supported by valid reasons is no judgment in the eyes of law. Clubbing the entire matter and writing diffused Regular Second Appeal Nos.2165 & 2199 of 2006 -8- judgment tend to confuse the matter and uncertainty in this relevant connection. 23. Not only that, exhibiting the importance of passing a speaking and reasoned order, the Hon'ble Apex Court in case Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others (2009) 4 Supreme Court Cases 240 has held (para 8) as under : - “The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N.Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.” 24. Sequelly, in this view of the matter, as there is complete violation of Order 20 Rules 4 and 5 CPC, therefore, to me, the judgment of Ist Appellate Court is no judgment in the eyes of law. It committed a legal error and omitted the relevant evidence/discussion with impunity. This Court is conscious of the fact that the relevant provisions of remand should be sparingly invoked, but, if the totality of the facts and circumstances, as discussed hereinabove, are put together, then, to my mind, the conclusion is inescapable and irresistible that the remand is the only just and proper remedy to decide the real controversy between the parties, otherwise, it would inculcate and perpetuate injustice and the parties would be materially prejudiced from the erroneous decision of the Ist Appellate Court. To me, it would legally be appropriate and justice would be sub-served if the matter is remanded back to the Ist Appellate Court for fresh determination of the indicated points involved in the appeals. 25. In the light of aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the course of hearing of the first appeals, the instant regular second appeals are accepted. Consequently, the impugned judgment and decree of Ist Appellate Court are Regular Second Appeal Nos.2165 & 2199 of 2006 -9- hereby set aside and the matter is remitted back to Ist Appellate Court for fresh decision, in the light of indicated observations and in accordance with law. 26. The parties through their counsel are directed to appear before the concerned appellate Court on 30.11.2011. 27. Needless to mention that nothing observed here-in-above would reflect in any manner on the merits of the case as the same has been so recorded for a limited purpose of deciding the present appeals. (Mehinder Singh Sullar) 30.8.2011 Judge AS Whether to be referred to reporter?Yes/No