RSA No.1401 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1401 of 2003 Date of Decision: 15.01.2009 Kurdia ..Appellant Vs. Rameshwar Dass & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Anil Khetarpal, Advocate, for the appellant. Mr.Arvind Singh, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This order shall dispose of RSA No.1401 of 2003 and 47 of 1889 both titled Kurdia Vs. Rameshwar Dass & Ors., as common questions RSA No.1401 of 2003 2 of law and facts are involved in both these appeals. For the sake of brevity, the facts are taken from RSA No.1401 of 2003. This regular second appeal is directed against the judgments and decree dated 13.5.1999 and 1.2.2003 passed by the learned courts below dismissing the suit filed by the plaintiff-appellant seeking declaration, that the plaintiff and defendant No.5 are the owners, in equal shares, of land situated within the revenue estate of village Radaur which was earlier owned by Molar Ram son of Nathu. Smt.Bhajji was not owner or co-sharer with the plaintiff and defendant No.5, and that the Will executed by her was not binding on the rights of the plaintiff and defendant No.5, with a consequential relief of permanent injunction restraining the defendants No.1 to 4 from claiming ownership and possession of the suit property. The plaintiff/appellant brought a suit by claiming that defendants No.1 to 4 were minor sons of defendant No.5 and were living under the care and custody of their mother Punni Devi who had no adverse interest against the minors. It was claimed that Nathu son of Bhura grand- father of plaintiff and defendant No.5 was owner of the land in dispute. He is said to have died on 7.8.1912 and mutation of inheritance was accepted and attested in favour of his sons Baru, Molar and Kapoora, in equal shares. Molar was the father of the plaintiff and defendant No. 5 who was said to have partitioned the land with his brother and thus, became sole owner of the property falling to his share. It was the case set up by the plaintiff that Molar grew very old RSA No.1401 of 2003 3 and was unable to cultivate the land and to work any more, so he transferred all his property in favour of the plaintiff and defendant No.5 vide mutation No.1887 which was attested by the revenue officer on 17.6.1954. As Molar was unable to work in the fields the plaintiff and defendant No.5 were cultivating the land before the mutation of Tamleek. They continued to cultivate the same as owners after his death as well his life time without any interruption. Mutation of Tamleek sanctioned in favour of the plaintiff and defendant No.5 was sent in review on the ground that Molar had obtained Taqavi loan from the State Government, so, the land comprised in Khewat No.165 as mutated in favour of the plaintiff and defendant No.5 was mortgaged with the State in lieu of Taqavi loan. It was after the payment of Taqavi loan that the land could go to plaintiff and defendant No.5 in equal shares free from all encumbrances. The said mutation was entered in the Jamabandi for the year 1953-54 but was discontinued after consolidation proceedings. The revenue authorities failed to perform their duties and the mutation, sent for review was never received back and so it was not incorporated in the next Jamabandi. Molar died in the year 1970 but on account of non- incorporation of the mutation of Tamleek in favour of the plaintiff and defendant No.5, Molar was wrongly shown to be owner in the revenue record. On his death mutation was sanctioned in favour of the plaintiff, defendant No.5 and their mother Bhajji widow of Molar. It was further RSA No.1401 of 2003 4 alleged that Smt.Bhajji never claimed any title over the suit land and same remained with the plaintiff and defendant No.5. It was also the case of the plaintiff/appellant that he was not aware of the entry in favour of Smt.Bhajji so he did not agitate the same earlier. It was further the case set up that the mutation in favour of Smt.Bhajji was non est and infructuous and without any right because Molar was not having any right in the land and so his widow could, not have inherited anything from Molar much less, could become owner or co- sharer. It was also the case of the plaintiff that defendant No.5 was aware of the fact of sanctioning of mutation in favour of Smt.Bhajji so in order to grab the share of the plaintiff/appellant, defendant No.5 got a civil suit filed in civil court of Kurukshetra as guardian-ad-litem of his minor sons defendant No.1 to 4 and took Smt.Bhajji to Kurukshetra to transfer the land in favour of his sons by way of collusive decree, but when the plaintiff appeared in the court on coming to know about the fraud being played the collusive suit was withdrawn. Smt.Bhajji was blind, hard of hearing and infirm lady and could not understand her own good and not of sound disposing mind. Defendant No.5 got executed a Will from Smt.Bhajji in favour of his sons defendants No.1 to 4 which was neither valid nor binding on rights of the plaintiff on the ground that Bhajji was not the owner of any land in village Radaur as mutation No.2456 which made her heir to the estate of Molar was wrong and without basis, because at the time of death RSA No.1401 of 2003 5 of Molar, he was not the owner of any land as it stood transferred to the plaintiff and defendant No.5, who were in actual cultivating possession of the land as full owners. It was claimed that Tamleek was never cancelled by the donor or set aside by any court of law. Thus, the plaintiff and defendant No.5 were the owners of the land which was the subject matter of mutation No.2456, as both the sons were alive so the mutation No.2456 is non est and not binding, operative or having any legal sanctity in the eye of law. It was pleaded that as Smt. Bhajji was not owner of the land, she had no right to execute the Will. The Will was also challenged on the plea that she was not in sound disposing mind at the time of execution of the Will. It was also pleaded that Will must have been obtained by fraud, intimidation and coercion, as the plaintiff was very dear to Smt.Bhajji, who had love and affection for the plaintiff and therefore, she could not in senses deprive the plaintiff of any rights though actually she had no right in the land. The plaintiff asserted that the land measuring 2 kanals 18 marlas was acquired by the State Government and defendants No.1 to 4 were claiming share out of compensation for the land on the basis of Will dated 24.1.1980. It was claimed that mutation in favour of Bhajji was contested and was pending decision with Assistant Collector Ist Grade, Thanesar. Plaintiff and defendant No.1 have been dealing with the suit land as full owners and have been in cultivating possession of the same. RSA No.1401 of 2003 6 Smt.Bhajji never asserted her right to the suit property, the title and right of the plaintiff was never in dispute but defendant No.5 along with defendants No.1 to 4 started asserting their right on the basis of Will, therefore, the suit. The suit was contested by the defendants on the plea that the suit was not maintainable; that the suit was hopelessly time barred and that the plaintiff was estopped from filing and maintaining the suit by his own act and conduct. The plea of estoppel was also raised as also the ground of res judicata. It was claimed that the plaintiff had not come to the court with clean hands and that the suit was bad for want of proper court fee and jurisdiction. It was claimed that the controversy in issue stood already decided by the court in previous suit between the parties. On merit, it was denied that defendant No.1 was minor. It was also denied that Molar was unable to cultivate the land. Transfer of property in favour of plaintiff and defendant No.5 was also denied. It was also denied that the plaintiff had been cultivating the land before the alleged mutation of tamleek. Stand was taken that after the death of Molar the plaintiff got the land according to his share and has been cultivating the same. Defendant No.5 and Smt.Bhajji were in possession of their shares. It was denied that the land was ever mortgaged with the State. Other allegations in the plaint were also denied. It was asserted that Snt.Bhajji mother of the plaintiff and defendant No.5 inherited the land and mutation was sanctioned in her favour in the presence of the plaintiff without objection. RSA No.1401 of 2003 7 It was admitted that Molar died in the year 1970, but it was denied that he was wrongly shown as owner in possession in the revenue record. It was claimed that he was full owner of the land and after his death mutation was rightly entered in favour of all the legal heirs. It was claimed that now defendants No.1 to 4 became owners in possession of the share of Smt. Bhajji. It was denied that the plaintiff was not aware of mutation in favour of Smt.Bhaji. She was said to have inherited her share in land from her husband as full owner and thus, became co-sharer. Allegations along with validity of the Will were also denied. In the replication plaintiff reiterated the averments made in the plaint and denied that of written statement. On the pleading of the parties the learned trial court was pleased to frame the following issues: “1. Whether the plaintiff is entitled for declaration to the effect that the plaintiff and defendant No.1 are owners in possession in equal shares of the land as detailed in para No.10 of the plaint? OPP 2. Whether mutation No.2456 is illegal,void, non est and not binding on the rights of the plaintiff? OPP 3. Whether the alleged will dated 24.11.1986 executed by Smt.Bhajji is forged, fabricated and not binding on the rights of the plaintiff? OPP 4. If all the above said three issues are proved, whether the plaintiff is entitled for a decree of permanent injunction RSA No.1401 of 2003 8 restraining the defendants No.1 to 4 from alienating any part or portion of the suit land or dispossessing the plaintiff therefrom in any manner whatsoever or from claiming any amount of compensation from the Acquisition department for the land acquired against the defendants? OPP 5. Whether the suit is not maintainable? OPD 6. Whether the suit is time barred? OPD 7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 8. Whether the suit is barred by principle of res judicata? OPD 9. Whether the plaintiff has not come to the court with clean hands? If so what is its effect? OPD 10. Relief.” The plaintiff examined himself as PW 1 and Som Nath as PW 2 and closed his evidence on 3.8.1996. Defendant examined Rameshwar Dass as DW 1 and closed evidence on 25.8.1988. Learned trial court took up issues no.1 to 4 together. On appreciation of evidence learned trial court was pleased to hold that claim of appellant/plaintiff was based on mutation No.1887 Ex.P.9 which was sanctioned on 17.9.1954. It was held that said mutation did not confer any title upon the plaintiff as said mutation was against the provisions of law. Learned trial court relied on the provisions of Sections 122 and RSA No.1401 of 2003 9 123 of the Transfer of Property Act to hold that the gift is required to be in form of a deed and is required to be registered, as no registered deed was executed it cannot be said that there was any valid gift in favour of the plaintiff. The learned trial court held that even under the oral gift delivery of possession to the donee is must. There was no evidence on record regarding delivery of possession to plaintiff. According to the Jamabandi for the year 1954-55 Ex.P.1 possession of the land was with Ramanand and Hari Ram being gair marusi tenants. This Jamabandi came into existence after the sanction of mutation No.1887, donees were not recorded in possession. Similarly, in the subsequent years i.e. Jamabandi for they year 1960-61, Ex.P.2, Mulakh Ram was shown in possession of the land measuring 36 kanals 4 marlas whereas Molar Ram is shown in possession of land measuring 18 kanals 10 marlas. The learned trial court held that mutation No.1887 was rejected on 10.4.1958 and as such the very basis of the claim of the plaintiff stood extinguished. After 1958 property was again recorded in ownership and possession of Molar and it remained as such till the time of his death. During the life time of Molar and after his death plaintiff/appellant never asserted right to ownership, over the property in dispute on the basis of gift as is evident from mutation No.2456 Ex.P.8 which was got sanctioned on 10.7.1970 by the plaintiff himself. The learned trial court held that the plaintiff had instituted a RSA No.1401 of 2003 10 civil suit against defendants No.1 to 4 on 24.6.1982 to seek a decree for perpetual injunction to restrain them from taking forcible possession of the suit land. In the said suit plaintiff claimed that he was co-sharer in the suit land and the defendants No.1 to 4 had no interest, right or title in the suit property. In the written statement filed to the said suit the defendants asserted their title over the suit land to the extent of 1/3rd share on the basis of Will executed by Smt.Bhajji. The stand of the defendants was contested in the replication wherein it was pleaded that the Will set by the defendants was a forged document, as no such Will was executed by Smt.Bhajji. However, the Will was upheld vide judgment and decree dated 21.3.1987 and the defendants were held to be co-sharers, and the suit filed was dismissed. Appeal filed against the judgment and decree was also dismissed by the then learned Additional District Judge, Kurukshetra vide judgment and decree dated 5.9.1988 and the matter is pending in this court in connected Regular second Appeal No.47 of 1989. Copies of the judgments and decree of the learned trial court as well as of learned lower appellate court were duly exhibited. Learned trial court was pleased to hold that the finding in the earlier suit between the parties operated as res judicata. The finding recorded by the learned trial court on the question of res judicata was affirmed by the learned lower appellate court on the plea RSA No.1401 of 2003 11 that the ground of attack and defence was availabel to the plaintiff in the previous suit and therefore, the plea raised was barred on the principle of constructive resjudicata. The learned lower appellate court held that the learned trial court committed an error in ignoring the claim of the plaintiff regarding the gift. The learned lower appellate court held that the gift had taken place in the year 1954. At that time oral gift was permissible as the provisions of Transfer of Property Act pertaining to gift were made applicable to the erstwhile State of Punjab with effect from 19.5.1957. Learned lower appellate court also held that the observation of the learned trial court that the gift was not with delivery of possessio, were against the evidence on file in view of mutation Ex.P.9 showing that the possession of the suit land was also transferred to the plaintiff and defendant No.5. The learned lower appellate court held that the defendants admitted the possession of the plaintiff over half share of the suit land. Learned lower appellate court was of the view that review of mutation Ex.P.9 did not affect the gift. Learned lower appellate court, thus, held that gift stood proved as the oral gift was accompanied by delivery of possession. The learned lower appellate court further held that even if the part of suit land was under mortgage with Government then of course the gift would have been subject to right of mortgagee and nothing more. Thus, the findings of learned trial court were reversed and it was held that Molar gifted the suit land to his sons i.e. the plaintiff and defendant No.5 in the year 1954. RSA No.1401 of 2003 12 The learned lower appellate court also held that the suit filed was within limitation. In order to reach this conclusion learned lower appellate court was of the view that the mutation did not confer any title and in case the mutation of inheritance of the suit was wrongly sanctioned in favour of Smt.Bhajji it did not deprive the plaintiff to get it set aside as and when cause of action arose to him to file the suit. Learned lower appellate court further observed that the cause of action accrued to the plaintiff when he felt threat to his possession immediately prior to injunction suit. The learned lower appellate court held that as the plaintiff continued to be in possession of property there was no cloud cast on title of the plaintiff by mere entry of mutation. The learned lower appellate court also held that in case the defendants wanted to non- suit the plaintiff on the question of limitation it was for them to prove that they had perfected their title by adverse possession. The plea of estoppel was also rejected as the conditions under section 115 of the Indian Evidence Act were not fulfilled. However, learned lower appellate court affirmed the findings of the learned trial court with regard to the fact that the suit was barred on the principle of res judicata and consequently dismissed the appeal. Mr.Anil Kshetarpal, learned counsel appearing on behalf of the appellant contends that the following substantial questions of law arise in this appeal for consideration:- 1. Whether the learned courts below were bound to have decreed the suit for permanent injunction when the RSA No.1401 of 2003 13 appellant was found to be in possession of the land to the extent of his share? 2. Whether the findings of the learned lower appellate court holding the suit to be barred by principle of res judicata are perverse and not sustainable in the eye of law? Learned counsel for the appellant contended that the defendant had admitted in his examination-in-chief that he was in possession of half share which leads to the conclusion that the plaintiff was in possession of half share of the property and therefore, he was entitled to injunction on the basis of possession. However, this plea cannot be accepted as the defendants did not admit possession of the plaintiff. The finding recorded by the learned lower appellate court regarding possession was the outcome of misreading of evidence brought on record. Rather in the cross-examination the defendant had stated that the plaintiff was in possession of his share i.e. 1/3rd which stood proved from Ex.D.2 and Ex.D.3 brought on record. The oral statement made by the defendant was contrary to the revenue record and also to the case set up by the plaintiff in the cross- examination and thus, the first substantial question of law as raised deserved to be answered against the plaintiff/appellant. Learned counsel for the appellant thereafter contended that the appeal deserves to be allowed as the findings of the learned trial court on RSA No.1401 of 2003 14 all the issues stood reversed by the learned lower appellate court and he was merely non-suited on the ground of res judicata. The contention of the learned counsel for the appellant was that the finding of res judicata cannot be sustained in the eye of law. In support of this contention, learned counsel for the appellant referred to Section 11 of the Code of Civil Procedure which reads as under:- “11. Res judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. RSA No.1401 of 2003 15 Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former RSA No.1401 of 2003 16 proceeding for the execution of that decree. Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” The contention of the learned counsel for the appellant, therefore, was that the appellant has been non-suited in view of Explanation IV. Though prima facie the suit seems to be barred by principle of res judicata. However, when explanation is read with Section 11 it has to be held that the learned courts below were in error in holding the suit to be barred by principle of res judicata. Section 11 provides that no court shall try any suit or issue in which matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under them they or any of them claim litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been substantially raised and has been heard and finally decided by such court. It was contended that once regular second appeal was pending in this court it could not be said that the suit was barred by principles of res judicata as the decision has not attained finality. RSA No.1401 of 2003 17 There is force in this contention of the learned counsel for the appellant