404 m1a RSANo385 of2011 INTHE HIGHCOURTOFPUNJABAND HARYANAAT CHANDIGARH RSANo385 of 2011 408M1 DateofdecisionlIo12012 BahadarSingh m r 0 0 Versus I C5 I Ram Pyariand others Z 1 C CORAM HONBLEMRJUSTICEJORA SINGH I Present Mr ajiv Joshi Advocatefor the appellant Il L Mr RajputAdvocate for NoCaveator 4 00 JORA SINGH J emo this RegularSecond Z Bahadar againstthe dated72011 renderedbythe Iearned ll Jalandhar reversingthe and decree AdditionalDistrict dated32009 passedbythe IearnedAdditionalCivii Judge Senlor Divisionl JalandharinCivilSuit No80 of 2007 OledbyRam Pyari 280of 2007 was institutedbyRam Pyarion Civil Suit No 1652001 Krishan Lal Chaman Lal Bahadar and Saudagar all sons of Iate Dhanna Ram residentof Village Usmanpul and DistrictJalandhar for declarationto the effect Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document n 405 6J RSANo3850f2011 e2e thatshe is thejointowner to the share in the Iandmeasuring 31 kanals 9 marlas in Khata No and 47166khasraNoll313 19 14 461 17 8Ol 1811 0e1212312 12124 Ol 5112113 221115 61 6112513 121 171312 121911411 161and412641situatedin villageUsmanpurand mutationNo 1209 1 sanctionedon the basis ofWill dated21988 allegedto be executed by Ram is null and void and and decree dated 0 0 291995passedin Civil Suit No 471 of 1994 titledas Knshan Lal vs I ChamanLal and is null and void with relief of 0 for restraining the defendantsfrom alienating the I c shareof the No 1 or in any manner changingthe Z 54 natureof the suitIand of Nol is that DhannaRam k theowner in of the propenyin dispute PlaintiHe I was No l beingthe of Dhanna Ram is the owner to Z theextent of 115share but the defendantsin order to grabthe 10 filedone Civil Suit No471 of 1994 titledas lOishanLal vs a7 Lal and others with the that theyare the owners to Z the extent of 114 share each byvirtueof Wiil dated21 988alleged to tl havebeen executedbyDhanna Ram butthe said suitwas dismissedby the Court vide and decree dated 291995 by the Wi Krishan Lalwas declared owner to the extent of 115 share of the in dispute Againstthejudgment and decreedated291995 no appealbythe defendantsbut the defendantsagainOledsuit without the Nolas partytitled as KrishanLal vshaman and others for byway of paMition of theIandto the extent of 114 share each When the Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 406 RSA N33850f2011 e3e No l came to know about the pendency of the suit then she moved an under Order 1 Rule 10 CPC on 231999 Piaintiffe respondentNo 1 was impleaded as partyvideorderdated 10111999 but when theevidencewas beingrecordedthen suit was gotdlsmlssed as withdrawnon 1432001 Nol came to know 1 after that Ole throughher counsel that defendantsgot r mutation sanctionedon the basis of forgedand fabricatedWill dated 0 0 21988 on 1521994 Nol had contestedthe I mutationbut she was told that she has been as owner but 0 when she obtainedthe copy of jamabandi then her name was found I mlssing The mutationsanctionedon the basis of theWill is againstthe Z facts Iaw and record DhannaRam had not executed anyWill In view 2 1 of thejudgment and decreedated 291 995 the mutationhas become 11 redundant I 1 Co Uponnotice defendantsNo 2 and 4 did not turn up to contest the claim of the Nol and 00 againstex Parte DefendantNo 3 BahadarSinglopellantOledthe VAVO writtenstatementand contested the suit interalia on theallegation that Z suit is timebarred Suithasnot beenproperly valuedfor thepurposeof Oa Courtfee and jurisdictionSuit is bad for misjoinder and of necessarypartiesand is not maintainablein view of Order 7 Rule 1Ol CPC On merits allegation of the that Dhanna Ram was the owner In possessionof the property in disputeAfterthe death of DhannaRam defendantshave becomethe owners in equal sharein viewof the Will dated 21 988 On the basisof Will mutation Nol 209 was rightly sanctioned No l contested the mutation No 1209 but againstmutationorder no appealwas Oled Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 407 RSANo385 of2011 a4e 6 bythe No 1 Present suit was filedin collusionwith KrishanLal Krishan Lal filed suit forseparate by in collusion withthe present No l in is Iand and the same cannot be bythe CivilCourt After contest mutationwas rightlysanctionedon thebasis 1 of Will dated 21 988 Property in disputeis in the of the CC defendantsas owners 0 40 to the writtenstatementof defendantNoNas I filedbydenyingall the facts made therein From the pleadings of the t5 parties following issues were framedl I 1 lNhetherthe plaintiff is entitledto declaration Z as prayedfor 20PP 2 Whether the plaintiffIS entitled to joint Ct and injunctionas prayedfor OPP Z 3 Whetherthe suit is not maintainable2OPD CQ 4 INhetherthe suit is timebarred7OPD W3 5 lNhetherthe plaintiffis estoppedby her own Z act and conduct to file the presentsuit7OPD ll 6 Whetherthe suit is bad for and of the necessaryparties2 OPD Additional Issue 1 Al Whether deceasedeDhannaRam has executed Will dated 21 988 in his sound mindin favour of defendants2OPD 7 Relief Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 408 1 RSANo385of2011 e5m Evidence was Iedby both the partiesand after going the evidence on file suit of the Nol was dismissedbythe IowerCourt but judgment of the IowerCourt was set asidebythe IearnedIst Appellate Court have heardIearned counsel for the appellantIearned 1 counselfor respondent No 1Caveatorand have gonethrough C theevidence on Ole 0 0 Learnedcounsei for the appellantarguedthat Dhanna Ram I was theowner in possession of the property in and t5 N 2 to 4 are the sons of Dhanna Ram whereas No 1 is the daughter of Dhanna Ram Dhanna Ram had Z executedWill dated 231 988 in favourof his sonsn the basis of this m Will mutation Nol 209 was sanctioned on 152199l Ex Del is the 1 I 4 copyof the mutation Krishan Lal OledCivil Suit No 471 of 1994 but 0 the same was dismissed on 291995 Appellant was defendant in that suit so he had no power to file appealagainstthe judgmentand 00 decree dated 291 995 Krishan Lal filed another suit for separate em Z byway of partition of the Iandin disputewithout ll Ram Piariespondent Nol eCaveatoras one ofthe defendant Inthe second suit Oled by Krishan Lal Ram Piari movedan application under Order 1 Rule 10 CPC and the same was allowed vide order dated 101 1 999 but when the evidence was goingon then suit for partition was gotdismissed as withdrawnon 1432001 On the basis of Will mutationNo 1209 was entered Ram Piari appearedthrough counsei Learned counselfor Ram Nol made statement on 201 994 that mutation be sanctioned on the basis of Will Order of mutation was not challengedSuit of the plaintif6 Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 409 4 RSANoe33850f2011 e6e No 1 is barredby res Arguedthat foilowing 1 of Iaw arisesin the presentappeall al Whether the suitof the was barredbyIimitation7 bl Whether the principle of res judicatawouldbe 1 to the colefendants in a suit where r the plaintiff and the defendant were in collusion 0 and played a fraud upon another party7 0 I cl Whether an act of the pleaderbinds the party 0 and whether the partycan disown the same Ct Z Learnedcounsei for the appellanthas placedrelianceuponAlR 1995 1 1 SupremeCourt 1205 Mahboob Sahab vsyed Ismall and othet C0 Learnedcounsel for contested respondent Nol eCaveator Z arguedthat no doubt Dhanna Ram was the owner in possession of the Cll Iand in disputebearingdifferent khasra numbers but Will dated W2 23988 was not executed by Dhanna Ram Will dated 2 1988 Z allegedto have been executed by Dhanna Ram IS forgedand ll fabricated Civil Suit No 471 of 1994was institutedbyKrishanLal for declaration and permanent on the basis of Will dated 21988 No 2 to 4 admitted that Will dated 231 988 was executed by Dhanna Ram in favour of the plaintiffie KrishanLal and contestingdefendants Suit was dismissed on 2951 995 but againstthe dated 291 995 there IS no appealby anybody On the basis of Will dated 21988 mutationNo1209 was Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 410 J RSA No3850f2011 a7e sanctioned Ram No 1 Caveator appeared counsel and her counsel made a statement to the eHectthat on the basisof Will dated21988 no if themutationis sanclloned SO at this stageBahadarSinghcannot arguethat Will dated21 988 was executed byDhannaRam SuitfiledbyRam Piari is not barredby 1 the principie of res judicataReliance was placedupon 1il2008 21 C RCR 1Civill936 Dadu DayaluMahasabha vs Mahand Ram Niwas 0 0 and another 1iil 2009 RCR ivill 696 GangaiVinayagar I t5 Templeand others vsleenakshi Ammal and other liiil 200915 I RCR ICivill767 ArjunSinghe Bachan Singh and 11v1 2010121 Z Civil Court Cases 723 SC Chittoor Chegaiahad others e Pedda Jeeyangar Mutt and another W CC Dhanna Ram was owner in possessionof the I property in disputefullydescribedin the heading of the plaintpresented Z by Ram Piar This fact is aiso an admitted one that Ram Piari is the of Dhanna Ram whereas Chaman Lal Bahadar Singhe CO appellantKrishan Lal and Singhare the sons of Dhanna Z Ram On the basis of Will dated 21 988 mutationNo1209 was ll sanctionedon 152 1994 KrishanLal also Oledone suit for partitlon without Ram Piari Ram Piari moved an application under Order1 Rule orderdated 101999 When the suit was pending for evidencethen the same was dismissedas withdrawnon 1432001 Allegation of the appellantIS that DhannaRam had rightly executed the Will dated 31 988and on the basisof Will mutationNo Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 411 RSA No385of2011 a8a 1 thatunegisteredWill is not genuine one In view of the and decreedated 291 995 passedin Civil Suit No 471 of 1994 Oledby KrishanLal mutationNo 1209is withoutany vaiuebecause mutationconfers no titie Civil suit No71 of 1994 was institutedby KrishanLal 1 againsthis brotheonamelyChaman Lal Bahadur Singh r Singh and sister Ram Piari Suit was for declaration and 0 0 on the allegation that Dhanna Ram had rightlyexecutedWill I dated231 988 in favourof his four sons On the basis of Will all the 0 sons of Dhanna Ram are the owners to the extent of 114 share each Z Chaman LaI Bahadar Singhand SaudagarSinghsons of Dhanna Ram Z as defendant No 1 to 3 filed jointwrittenstatementwith the C 4 that Dhanna Ram was the owner of the Iand in dispute Will dated 21988 was rightlyexecutedby Dhanna Ram in favour of his four L sons excludinghis daughterRam Piari From the of the Z partiesrelevant issues No 1 and 2 framed are as under OO 1 WhetherDhanna Ram executed a valid Will vmo dated 21 988 in favour of the plaintiffand Z defendantsNol to 37OPP Il 2 If issue No 1 is provedwhetherthe plaintiff iIS entitledto 114 share7 OPP Evidence was Iead by both the partiesand after going throughthe evidence on file Issues Nol and 2 were decidedagainst the plaintiffKrishan Lall It was held by the Court that Will dated 21988 was not provecl Krishan Lal is not entitledto 114 shareIll the propertyowned byDhanna Ram meaningtherebyall the Iegalheirs of DhannaRam eour sons and one daughterare the owners of the Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 412 l RSA No385 of 2011 m9m Iandin disputeto the extent of 115 share each Inthis Civil Suit No471 of 1994 allegation of Krishan Lal Chaman LaI BahadarSingh and was that Wlllldated 21988 was executedbyDhanna Ram but Will was not accepted by the Court Againstthe judgmentand decree dated 291 995 no 1 appealwas filed either by Krishan Lal or his three brothers namely ChamanLal Bahadar Singhand SaudagarSingh On the basisof the 0 0 said Will mutation was entered and sanctioned on 152 1994 I Allegation of the appellantis that before the revenueauthoritiesRam C Piari appearedthroughcounsel and Iearned counsel for Ram Piari I c madea statementon 201 1994 that he has no objection if mutationIS Z sanctioned in view of Will dated 21 988 but in view of thejudgment and decree dated 291995 passedin CivilSuit No 471 IJ of 1994 filed by Krishan Lal mutationNO 1209 dated 1521994 IS C0 without any value and confers no title Evidence on Ole Z c shows that Mi SC Nanda was the counsel of Ram Piari and one of the CQ sons of Dhanna RamNill was required to be attested at Ieastbytwo r wmo witnesses and one of the witness is requiredto be producedin Coun Z In case the mutationwas sanctioned in view of the statementof Mr SC Oa Nanda Advocate who was Ram Piari and one son of Dhanna Ram them mutationis without any valuein view of thejudgment dated 291 995 passedin Civil Suit No 471 of 1994 In a suit filed by Ram Piari relevant issues N0 2 and 1 are reproduced as under n Whetherthe plaintiffis entitledto declaration as prayedfor 20PP 2 Whether the plaintiffIS entitled to joint Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 413 Itll RSA No385of2011 40m and as prayed for7 OPP Additional Issue 1Al Whether deceased4OhannaRam hasexecuted Will dated 31 988 in his sound mindin favour 1m of defendants2OPD After evidence Iead by both the partiesIearnedtrial Court 0 0 opinedthat Will dated 21 988 was rightly executedbyDhannaRam I RamPiari is not the owner to the extentof 115 share SO t5 I InCivil Suit No 471 of 1994 filed Krishan Lal ChamanLal SinghBahadar SingIopellantand Ram Piari were the Z defendants but in Suit No 280 of 2007 filed byRam Piari KrishanLal m 1 ChamanLaI Bahadar Singhand SaudagarSinghwerethe defendants Cr tt1 I thatmeans partiesare the same in Civil Suit No 471 of 1994and also 1 C in the presentsuit No 280 of 2007 Oled by Ram Piari which was dismissed by the trial Court When disputewas the 00 of the Will then in the second suitOledbyRam Piari Coun awo Z cannotopinethat Will is genuineone Bahadar Singhwhile appearing as witnessadmitted that second suit for partition was institutedby Krishan LaI He had appearedthroughcounsel Ram Piari was not a partybut on the applicationunder Order 1 Rule 10 CPC dated 2381 999 she was impleaded as one of the defendant When thecase was pendingfor evidence then the same was got dismissed and withdrawnbyKrishan Lal On the basis ofWill dated 21988 mutation No1209 was sanctioned on 1521994 but in Civil SuitNo11 of 1994 decided on 2551995 Will dated 21988 was rejecte AftertheWill Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 414 RSA N 3385of2011 e11 Il wasrejected then mutationNo1209 has no value lJ Finding of the CivilCourt in Civil Suit No 471 of 1994 qua of the Will as res judicatain the suitfiled byRam Piari InArjunSinghscase pralit was held that Ifone of the W ISsue IS decidedagainstthe defendantbut the suit of the plaintiff is C dismissedand no appealis filed by the defendantto challengethat 0 0 issuethoughrightto appealis available whetherOnding on the declded ISSue againstthe defendant would operateas res judicata Issue t5 I decidingtitleof the propertyis a substantialissue and any decision on that issue in an earlier between the same parlies or partiesof Z their would attract the provisions of Section 11 ofCPC 1 1 No authority was cited by the Iearnedcounsel for the appellant that once theCivil Court held that Will dated 21988 alleged to be executed byDhanna Ram is not genuinedocument thenmutalion 00 sanctionedearlier to the decision on the basis of the same Will carrles e mwo Z value and on the basis of mutationsons are the owners to the extent of 114shareeacl When clear cut Ondingof the CiviICourt l1 thatthe sons are not the owners to the extent of 114 share in fact sons and daughter are the owners to the extent of 115 share each in the property of Dhanna Ram In Gangai VinayagarTempleand others case 1supral Honble SupremeCourt held that Ondinggivenby Court having Findingbecame final and will operateas res judicata between the same partieseven if findingwas not correct or erroneous Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 415 RSA Noe 3385 of 2011 42n or reasoning was weak or finding was unnecessary InChlttoor Chegaiahand others case Isupralit was held thatRes is barred from an Issuewhlchhas already been decidedpreviously byany Court of Iaw In Dadu DayaluMahasabhas case supral Honble 1 Courtheld that res judicata debars a Court from its to determine the Iis if it has attainedOnalitybetweenthe 0 0 parties whereasthe doctrineof estoppel is invokedagainstthe partyIf I such an issue is decided againsthim he would be estoppedfrom 0 raising the same in the IatterproceedingThe doctrine of res judicata creates a differentkindof estoppel viz Estoppelbyaccord Z In the presentcase ciear cut allegation of Ram Piari that 1 earlierCivil Suit N 471 of 1994 was institutedby Krishan Lal and in I that suit Will dated 2 1988 was not acceptedand the same was dismissed vide judgment dated 291 995 She was declaredowner to Z the extent of 115 share of the Iand in disputelNhen no appealwas CO filed againstthe judgmentand decree dated 291 995 but again m7 Z Krishan Lal filed suit for separatepossessionbyway of partition on the Il that he is the owner to the extentof 114 share on the basisof Will dated 21 988 without Ram Piari as defendant but the same was dismissedwithdrawnvide order dated 1132001 Case of the No 2 to 4 is that mutationNo 1209was contestedand against rnutation order no appeal by Ram NolICaveator In view of all discussed above am of the opinionthat In Vlew of the decision in Civil Suit No 471 of 1994 Oled by Krishan Lal Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 416 1 RSA No385 of 2011 43e Civil Suit No 280 of 2007 filed by Ram Piari was not barred by IimitationSecondly In view of decisionon issues No 1 and 2 in suit No 471 of 1994 decision qua Will dated 31 988 operatoes as res judicata Earlierjudgment amongstthe partiesquathe 1 of the Will bind the partiesin the suit and statementof the counsel for contested respondentNo 1 that mutationbe sanctionedon 0 0 thebasisof Will is withoutany value because Will is required to be attested bytwo witnessesand one of the witness 0 I IS to be producl Court to prove the Wil When the same r counsel on behalfof two pailies one was lhe Will Z and second was the Will then the partyis not boundbythe r statementof the counsel I No other substantialquestionof Iawis involved C1 Z For the reasons recorded above RegularSecondAppeal meridismissed r m wwo Z January10 2011 1 1 rishu JUDGE tl 1e C e 1 r lI 1 MY44 4 Sl Rani Anita 2012.11.29 14: 15 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document