RSA No.3324 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3324 of 2008 Date of Decision: 22.11.2010. Raj Singh .....Appellant Versus Surjit Kaur and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R.K. Gupta, Advocate for the appellant. Mr. R. K. Garg, Advocate for respondent No.1. L. N. MITTAL, J (ORAL) Defendant No.1-Raj Singh is in second appeal, after he was successful in the trial Curt, but remained unsuccessful in the lower appellate Court. Sadhu Singh was owner of half share in 17 bighas 18 biswas 12 biswasis land described in the plaint. He left behind four heirs i.e Surjit Kaur-respondent No.1-plaintiff as widow, Bhupinder Kaur alias Jaswinder Kaur-defendant-respondent No.3 and Harvinder Kaur as two daughters and Harnam Kaur as mother. Harnam Kaur and Bhupinder Kaur filed suit against Surjit Kaur and Harvinder Kaur. In that suit, compromise was effected whereby Bhupinder Kaur relinquished her share in favour of Surjit Kaur. Accordingly, the said suit was disposed of vide judgment and decree dated 18.10.1995 Exs.P-3 and P-4. Subsequent thereto, defendant No.1-appellant filed a suit on 10.11.1995 against Bhupinder Kaur and Bara Singh. Defendant No.1-Raj Singh (plaintiff in that suit) alleged in that suit RSA No.3324 of 2008 -2- that Bhupinder Kaur through her uncle and attorney Bara Singh had agreed to sell share of Bhupinder Kaur in the suit land to Raj Singh. The said suit was decreed for specific performance of the agreement to sell vide judgment and decree dated 07.10.1998 and in pursuance thereto, sale deed was also executed in favour of Raj Singh regarding 1/6th share in 17 bighas 18 biswas 12 biswasis land. Surjit Kaur-respondent No.1 file the instant suit alleging that she is owner in possession of 3 bighas 17 biswas 8 biswasis land out of the share of Sadhu Singh in the suit land. She claimed that decree dated 07.10.1998 in favour of defendant No.1 Raj Singh is illegal, null and void, along with consequential proceedings. Permanent injunction was also claimed. Defendant No.1 contested the suit and claimed to be owner in possession of 1/6th share in 17 bighas 18 biswas 12 biswasis land pursuant to judgment and decree dated 07.10.1998 and consequent proceedings. Various other pleas were also raised. Defendant No.3-Bhupinder Kaur alleged that Bara Singh defendant No.2 got executed power of attorney fraudulently and the said power of attorney was cancelled. Defendant No.3 herein had stated in the suit filed by Raj Singh for specific performance of the agreement that defendant No.3 herein had already relinquished her share in the suit land in favour of Surjit Kaur plaintiff herein. Various other pleas were also raised. Defendant No.2-Bara Singh was proceeded exparte. Learned Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 07.012005 dismissed the plaintiff's RSA No.3324 of 2008 -3- suit. However, first appeal preferred by the plaintiff-Surjit Kaur has been allowed by learned Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 15.12.2007 and thereby suit filed by the plaintiff stands decreed. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that Bara Singh defendant No.2 is brother of Sadhu Singh predecessor of plaintiff and defendant No.3. At the same time, Raj Singh defendant No.1 is brother's son of wife of Bara Singh who as attorney of Bhupinder Kaur entered into agreement in favour of his own relative Raj Singh. Agreement to sell in favour of Raj Singh was regarding 1/6th share of the total joint land. However, Bhupinder Kaur at best had 1/8th share in the said joint land being one of the four heirs of Sadhu Singh who had half share in the joint land. Learned counsel for the appellant half heatedly contended that Surjit Kaur widow of Sadhu Singh had left the matrimonial home long ago and she could not inherit any share in the joint land. The contention cannot be accepted. Surjit Kaur being widow of Sadhu Singh is one of his class-I heirs and, therefore, Sadhu Singh left behind four heirs including Surjit Kaur widow, two daughters and mother. Consequently, Bhupinder Kaur had 1/8th share and not 1/6th share in the total joint land and Raj Singh as successor-in-interest of Bhupinder Kaur can at best claim 1/8th share and not 1/6th share in the joint land. RSA No.3324 of 2008 -4- Now coming to the decree dated 7.10.1998 in favour of Raj Singh against Bhupinder Kaur. Suit in which the said decree was passed was instituted on 10.11.1995. However, prior to that, Bhupinder Kaur had already relinquished her share in the suit land in favour of Surjit Kaur as per compromise culminating in judgment and decree dated 18.10.1995. In spite thereof, Surjit Kaur was not impleaded as party to the suit instituted by Raj Singh. Here it may be added that in view of relationship of Bara Singh with heirs of his brother Sadhu Singh on the one hand and with Raj Singh-defendant No.1-appellant on the other hand, Bara Singh was obviously aware of all the affairs of the family of Sadhu Singh and consequently, Raj Singh also could not be ignorant thereof. However, in spite of judgment and decree dated 18.10.1995 in favour of Surjit Kaur regarding share of Bhupinder Kaur, in suit filed by Raj Singh subsequent thereto, Surjit Kaur was not impleaded as party. Decree dated 07.10.1998 passed in favour of Raj Singh in the said suit is obviously not binding on Surjit Kaur, who was not party to the said suit. The said decree and subsequent sale deed etc. do not confer any right, title or interest in the suit land in favour of Raj Singh because Bhupinder Kaur hereself was left with no right, title or interest in the suit land and, therefore, Raj Singh could not derive any right, title or interest in the suit land from Bhupinder Kaur. Learned Counsel for the appellant vehemently contended that decree dated 18.10.1995 suffered by Bhupinder Kaur regarding her share in favour of her own mother Surjit Kaur on the basis of compromise was collusive between them to harm the interest of Raj RSA No.3324 of 2008 -5- Singh-appellant herein under agreement to sell dated 14.07.1993 entered into by Bhupinder Kaur through Bara Singh in favour of Raj Singh. The contention is apparently attractive, but cannot be accepted. Firstly agreement dated 14.07.1993 in favour of Raj Singh was entered into during pendency of the suit instituted by Harnam Kaur and Bhupinder Kaur against Surjit Kaur and Harvinder Kaur which was instituted on 04.06.1991. At that time Surjit Kaur and Bhupinder Kaur were rival claimants in the said suit and there was no collusion between them. Thus the said agreement was extended during the pendency of the said suit and is, therefore, hit by lis pendens. Secondly, decree dated 07.10.1998 in favour of Raj Singh was obtained by him without impleading Surjit Kaur as party and, therefore, Surjit Kaur is not bound by the said decree. For the reasons aforesaid, I find that suit of Surjit Kaur has been rightly decreed by the lower appellate Court. Even on the basis of admitted or proved facts (proved by irrefutable documentary evidence in the form of previous litigation), defendant No.1-appellant cannot claim any right, title or interest in the suit land. Learned counsel for the appellant contended that plaintiff-respondent No.1 is not in possession of the suit land. This contention also cannot be accepted because irrespective of the share of Bhupinder Kaur, Surjit Kaur also had her own 1/4th share in half share of Sadhu Singh. Consequently, she is co-sharer in the total joint land and the dispute is only regarding the extent of her share. She has not claimed her exclusive possession over the suit land because the same is still joint land and it is not the case of either party that the said joint land has RSA No.3324 of 2008 -6- been partitioned. Consequently, declaration sought by the plaintiff that she is owner in joint possession of the suit land has been rightly granted by the lower appellate Court. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. 22.11.2010. ( L. N. MITTAL ) A. Kaundal JUDGE