R.S.A. No. 1701 of 1986 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1701 of 1986 (O&M) Date of Decision : 9.3.2010 Jai Singh & others .......... Appellants Versus Munshi Ram & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the petitioners. Mr. Rohit Sud, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This is plaintiff / appellants appeal against the judgment and decree dated 14.12.1985, passed by the learned lower appellate Court, vide which the suit filed by the plaintiff / appellants was dismissed by accepting the appeal filed by the defendant / respondents, against the judgment and decree dated 5.5.1984, passed by the learned trial Court. The plaintiff / appellants filed a suit for possession, by claiming themselves as owners of agricultural land measuring 79 Bighas 4 Biswas situated at village Isharpur, Tehsil Thanesar, District Kurukshetra. R.S.A. No. 1701 of 1986 2 The pleaded case of the plaintiffs was, that one Hansa son of Dia Ram, resident of village Isharpur was previously owner in possession of the land, detailed in the plaint. Sh. Hansa died leaving behind Smt. Mangli, his widow, as a limited heir, as there was no direct male descendent to Hansa. Smt. Mangli held the land as “life estate” but she subsequently sold the land in favour of Sardha Ram of village Charpura by way of false and fictitious registered sale deed dated 9.6.1945 for consideration of Rs. 2,500/- (Rupees two thousand and five hundred only) without any legal necessity. The vendees Sardha Ram was father of defendants No. 1 to 5, maternal grand father of defendants No. 6 to 8, grand father of defendants No. 9 to 15, 17 and 18 and father-in-law of defendant No.16. The sale deed dated 9.6.1945 was challenged by Biru Ram son of Mangli, father of plaintiffs No. 1 & 2. The suit was decreed in favour of Biru Ram by the learned Senior Sub Judge, Karnal vide judgment and decree dated 2.3.1946, and it was held, that the sale sale made by Smt. Mangli in favour of Sardha Ram was not to affect the reversionary rights of the heirs of the last male holder, after the death of Smt. Mangli. The case of the plaintiffs was, that Sardha Ram died leaving behind defendants No. 1 to 18, as his only legal heirs and consequently, the mutation of inheritance was sanctioned in their favour. Defendants No. 1 to 4 thereafter suffered a collusive R.S.A. No. 1701 of 1986 3 decree in favour of defendants No. 1 to 18, vide judgment and decree dated 2.5.1972, vide which 23rd shares of the land was transferred in favour of defendants No. 9 to 18. The decree was said to be not binding on the rights of the plaintiffs being void and ab initio on the ground, that defendants No. 1 to 4 were not the full owners of the land but had limited interest of keeping possession of their shares during the life time of Smt. Mangli. Smt. Mangli @ Manti died on 30.9.1974 at village Ishergarh and after her death defendants No. 1 to 18 had no right to retain the possession of the suit land. It was also pleaded by the plaintiff / appellants that Biru Ram, their father died and they were only entitled to possession of the land being the nearest collaterals of the last male holder Hansa. The pedigree table reproduced in the plaint, reads as under :- Baju | Sabha | ________________________________________ | | Bile Ram__________ _________Gnagli (died) | | | | Nathu Ram Hansa Inder Biru died issueless died issueless died issueless | | ______________ | | Jai Singh Dile Ram plaintiff Plaintiff Thus, it was claimed that the plaintiff / appellants were entitled to possession, of the land from the defendants on the plea, R.S.A. No. 1701 of 1986 4 that their right was to be ascertained according to the law operating at the time of death of last male holder i.e. Hansa and not according to the law operating on the death of Smt. Mangli, who died on 30.9.1974. The plaintiffs claimed, that on the death of last male holder the father of the plaintiffs namely Biru was the nearest reversioner of the last male holder and after death of Biru, the plaintiffs No. 1 & 2 were the nearest reversionary of the last male holder. In the alternative, it was pleaded that in case it is held, that succession to the property opened on the death of Smt. Mangli on 30.9.1974, the reversioners would be those who would have been the heirs of the last male holder, if he died in the year 1974, and in that eventuality, plaintiff No.3 Smt. Rachni alias Kaurri being the only daughter of the last male holder was entitled to possession of the suit land from the defendants. It was also pleaded case of the plaintiffs, that after the sale deed dated 9.6.1945 and the decree dated 21.3.1946 of civil suit No. 20 of 1945, the consolidation of holdings took place in village Ishergarh, as a result of which the suit land detailed in para No.2 of the plaint was converted into the following land :- “Agricultural land measuring 79 Bighas 4 biswas comprised in khewat No. 32, khatoni no. 97, khasra no. 584(3-14), 599(4 -0 ), 600 (4 -0 ), 601(4-0), 619(4-0), 620(4-0), 621(4-0), R.S.A. No. 1701 of 1986 5 622(4-0), 623(4-0), 624(4-0), 625(4-0), 626(4-0), 627(4-0), 628(4-0), 985(4-0), Khatoni no. 98, khasra no. 620(3-14), 603(3- 16), 604(4-0), 605(4-0), 606(4-0), according to copy of jamabandi for the year 1973-74 of village Ishergarh,Tehsil Thanesar, District Kurukshetra.” The case of the plaintiffs was, that their request was not accepted, they filed a suit. The suit was contested by raising a preliminary objection of locus standi, and also that the suit was not competent in the present form. The plea of estoppel was also raised on the ground, that by virtue of Hindu Succession Act, 1956, the judgment and decree dated 21.3.1946 ceased to have any force and was null and void. The vendors became absolute owners of the suit land. It was case of the defendants, that the parties were governed by the Hindu Law and not by customary law. The suit was said to be bad for mis- joinder and non-joinder of necessary parties. The suit was said to be defective, as it did not disclose the correct particulars of the land. The pleaded case of the defendants was, that the suit was pre-mature, as there was no proof of death of Smt. Mangli, who was believed to be still alive. It was also pleaded case of the defendants, that the suit land was mortgaged with one Rattan Singh son of Giani of village R.S.A. No. 1701 of 1986 6 Iswhergarh for a sum of Rs. 9,00/- (Rupees nine hundred only), which mortgage amount even vide judgment and decree dated 21.3.1946 was declared to be part of consideration of the sale deed, therefore,it was mandatory for the plaintiffs to have deposited, that amount before institution of the suit. It was also pleaded case of the defendants, that vendor defendant No.10 was a minor, therefore, plaint was liable to be rejected. On merits, it was pleaded, that the particulars of the land given in the plaint were incorrect. It was also denied, that Hansa was the previous owner. However, it was admitted, that Smt. Mangli was widow of Hansa. But it was asserted, that she never entered into possession of the land as life-estate owner. The sale in favour of Sardha was said to be genuine. It was pleaded, that amount of Rs. 2,500/- (Rupees two thousand and five hundred only) was paid to the vendor as sale consideration, and amount of Rs. 9,00/- (Rupees nine hundred only) as mortgage money was also said to be valid. It was also asserted, that the plaintiffs were not related inter se. It was also pleaded, that particulars of the land were different from the one mentioned in the decree. The decree suffered by defendants No. 1 to 4 was said to be valid and legal. It was pleaded, that the mutation was sanctioned. It was asserted, that Smt. Mangli was never known as Mangti, who was one of the relative of the plaintiffs. The plaintiffs No.1 & 2 were said to be R.S.A. No. 1701 of 1986 7 not the collaterals of Hansa. Pedigree table was also said to be wrong. It was also asserted, that land was Banzar and it was reclaimed by the defendants by incurring expenses of Rs. 15,000/- (Rupees fifteen thousand only). In addition thereto, another sum of Rs. 10,000/- (Rupees ten thousand only) was incurred for installation of tubewell and construction of a Kotha. The minor defendant No.13 also filed a written statement through the Court guardian, on the same lines of other defendants. On the pleadings of the parties, the learned trial Court, framed the following issues :- 1. Whether the land stated in para No.1 of the plaint was owned by Hansa deceased? If so, to what effect?OPP 2. If issue No.1 is proved, whether Mangli widow of Hansa succeeded Hansa deceased his life estate?If so to what effect? 3. Whet her the impugned sale deed dated 9.6.1945 was false and fictitious and without consideration and legal necessity? If so, to what effect? 4. What is the effect of decree dated 21.3.1946 in suit No. 20 of 1945, as alleged in the plaint? 5. Whether the impugned decree dated 22.5.1972 is void ab initio and not binding on R.S.A. No. 1701 of 1986 8 the plaintiff and collusive. If so to what effect? 6-A. Whether plaintiff No.3 is the daughter of the last male holder Hansa deceased? 6-B. Whether the plaintiff No.3 is the only daughter alive of the last male holder Hansa deceased on or after 30.9.1974 the date of death of Smt. Mangli alias Mangti? 6. Whether the plaintiff No. 1 and 2 are collateral of Hansa deceased and are the only full heirs of Hansa deceased by the principle of representation as alleged in the plaint? If so to what effect? 7. Whether the land in question is reclaimed by defendants No. 1 to 6, 9, 11, 12, 14 and 15. If so the amount incurred thereon and to what effect? 8. Whether defendant Nos. 1 to 6, 9, 11, 12, 14 and 15 are entitled to special costs under Section 35-A C.P.C. If so the amount thereof? 9. Whether the plaintiffs are estopped from filing the suit after coming into force of Hindu Succession Act, 1956? OPD 10. Whether the suit is bad for mis-joinder and R.S.A. No. 1701 of 1986 9 non-joinder of the necessary parties? 11. Whether the suit is time barred? 12. Whether the suit is pre-mature? 13. Whether the plaintiffs are estopped by their act, conduct and acquiescence as alleged in the written statement? 14. Whether the plaint is liable to be rejected as alleged in the preliminary objection? 15. Relief.” On appreciation of evidence, the learned trial Court on issue No.1 held, that the land mentioned in para 1 of the plaint was owned by Hansa deceased. Whereas on issue No.2, it was held that Mangli widow of Hansa had succeeded to his estate as limited owner. Issues No. 3 & 4 were decided in favour of the plaintiffs and against the defendants, by relying upon para 210 of the Treatise on Hindu Law by Mulla, which reads as under :- “Decree in suit between next reversioner and alienee and re-judicate-- A suit by the next reversioner against the widow or other limited heir and an alienee from her for a declaration that the alienation is not binding on the reversioner is a representative suit on behalf of all the reversioners, and a decree fairly R.S.A. No. 1701 of 1986 10 and properly passed in such a suit, whether it is for or against the next reversioner, operates as res-judicata between not only the next reversioner but the whole body of reversioners on the one hand and the alienee and his representatives on the other.” Issue No.5 was decided in favour of the plaintiffs and against the defendants by holding, that decree dated 22.5.1972 was void ab initio and not binding on the rights of the plaintiffs being collusive. Issues No. 6-A and 6-B were decided in favour of plaintiff No.3 Rachni and against the defendants, whereas issue No. 6 was decided in favour of plaintiff No.3 and against plaintiffs No. 1 & 2. Issue No.7 was decided in favour of the plaintiffs and against the defendants. Issue No.9 was decided in favour of the plaintiffs and it was held, that the plaintiffs were not stopped from filing the suit after coming into force of the Hindu Succession Act. Whereas issue No. 10 was decided in favour of the plaintiffs for want of evidence, and issue No. 11 was also decided in favour of the plaintiffs and it was held, that the suit was within time. Similarly, issue No. 12 was also decided in favour of the plaintiffs and against the defendants. Issue No.13 was decided against the defendants for want of evidence, whereas on issue No. 14, it was held that rights of heir of the property after death of Smt. Mangli was not to be affected by R.S.A. No. 1701 of 1986 11 alienation, dated 9.4.1945 except to the extent of Rs. 900/- (Rupees nine hundred only), which stood duly paid by the plaintiffs vide challan Ex. P6. Issue No.8, was also decided in favour of the plaintiffs and against the defendants. Consequently, the suit was decreed. The defendant / respondents preferred an appeal against the judgment and decree passed by the learned trial Court. Before the learned lower appellate Court an application for amendment of written statement was filed, which was allowed. By way of amendment it was pleaded that the plaint did not bear the thumb impression of Smt. Rachni and the same was got affixed by some impostor, therefore, it was pleaded, that the suit was liable to be dismissed on this ground alone. The application was allowed, the written statement was permitted to be amended. As a result of amendment of the written statement, the learned lower appellate Court framed an additional issue No. 1-A, which reads as under :- “1-A. Whether the plaint and power of attorney does not bear the thumb impression of plaintiff No.3 as alleged in para 1(a) of the amended written statement? If so, its effect?OPD The learned lower appellate Court permitted the parties to lead evidence and in support of additional issue No. 1-A, the R.S.A. No. 1701 of 1986 12 appellants examined AW-1 Shri N.K. Jain, Document Expert, whereas in rebuttal the plaintiff / appellants examined Sh. Yashpal Chand Jain, Hand Writing Expert as RW-1 and Smt. Rachni as RW- 2. The learned lower appellate Court did not accept the contention of the defendant / respondents, that by passing of Hindu Succession Act Smt. Mangli had become absolute owner of the property, in view of the Full Bench judgment of this Court in the case of Amar Singh and others Vs. Sewa Ram and others AIR 1960 Pb. 530 FB. The learned lower appellate Court also affirmed the finding of the learned trial Court that Smt. Mangli died in the year 1974, therefore, the suit filed by the plaintiff / appellants could not be said to be pre-mature. However, the learned lower appellate Court on additional issue No.1-A, recorded a finding, that the plaint was not signed by plaintiff No.3. The reason for coming to this conclusion, reads as under :- “43. I have carefully scrutinised her statement and find that it is against the record. She has stated that she obtained certified copies of the revenue record from the Patwari but it is not so. The record shows that these certified copies were obtained by Jai Singh plaintiff. Similarly, the stamp papers were purchased by Jai Singh and not by her R.S.A. No. 1701 of 1986 13 and her statement that she purchased the stamp paper is also against the record. She also stands falsified yet on another account. According to her, she attended the court when the plaint was presented and the Presiding Officer was a male person. However, it is an admitted fact that the plaint was presented before the female Presiding Officer. Likewise, her statement that the suit was filed during rainy season is incorrect in as much as the suit was filed in the month of Jan. She also stands belied when she says that the suit was filed on the day when the certified copies were obtained from the Patwari. 44. Thus, when the opinion of the two rival experts is considered, the opinion given by the expert examined by the defendants appears to be correct and that the plaint and power of attorney alleged by thumb marked by plaintiff No.3 Rachni do not bear her thumb impression. Also, from the statement of Rachni herself, it becomes crystle clear that the plaint and power of attorney do not bear her thumb impression. Her statement on the other hand proves her complete ignorance about the institution of the suit. In other words, Rachni was not a party to the suit and on that account, she is not entitled to the relief sought by her in the plaint. I, therefore, have no hesitation to decide additional issue No. 1- A in favour of the defendants and as a result of such findings on issue No. 1-A, the appeal R.S.A. No. 1701 of 1986 14 filed by the defendants is accepted. The impugned judgment and decree are set aside and the suit is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs. ” As the suit against other plaintiffs was dismissed by the learned trial Court, the learned lower appellate Court, in view of finding on additional issue No.1 -A, accepted the appeal, and dismissed the suit filed by the plaintiffs. Mr. Arun Jain, learned senior counsel appearing on behalf of the appellants contended, that the following substantial questions arise for consideration by this Court in this appeal:- 1. Whether the approach of the learned lower appellate Court in dismissing the suit of the plaintiff / appellants on mere conjectures and surmises can be sustained in the eyes of law? 2. Whether the learned lower appellate Court has erred in law in permitting the respondents to amend the written statement at appellate stage arising a totally a new plea? 3. Whether in view of the fact that the respondent did not step in the witness box to support his allegation on issue No. 1-A, the finding of the R.S.A. No. 1701 of 1986 15 learned lower appellate Court are not perverse and illegal? In support of the first substantial question of law, the learned senior counsel appearing on behalf of the appelalnts contended, that the reading of the judgment of the learned lower appellate Court shows, that it is based on mere conjectures and surmises and not on positive evidence. The contention of the learned senior counsel for the appellants was, that once plaintiff No.3, in her statement had admitted having signed the plaint, there was hardly any reason to disbelieve her by framing additional issue. This contention of the learned senior counsel for the appellants cannot be accepted. The learned lower appellate Court allowed the parties to lead additional evidence on issue No.1-A, and thereafter on appreciation of evidence recorded a finding of fact, that the plaint was not signed by plaintiff No.3. The first appellate Court is final Court of fact. This Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure cannot interfere with the finding of fact, unless the said finding is outcome of misreading of evidence or is perverse. The reading of the findings, recorded by the learned lower appellate Court, shows that the learned Court appreciated the evidence, led by the parties, and thereafter recorded a finding of fact, on appreciation of evidence. R.S.A. No. 1701 of 1986 16 The first substantial question of law is answered against the appellants. On the second substantial question of law, the learned senior counsel for the appellants argued, that the learned lower appellate Court committed an error in allowing the defendant / respondents to amend the written statement at appellate stage on a totally new plea. This question of law, cannot be said to be a substantial question of law, it is well settled law, that the amendment of the written statement can be allowed by the Court, in order to adjudicate the real controversy between the parties. In any case, the appellants had not chosen to challenge the order allowing the amendment of the written statement, rather the appellants took a chance and led evidence to prove additional issue No. 1-A, framed on the basis of amendment of pleadings. Now it is not open to the appellants to challenge the said order. On the 3rd substantial question of law, the learned senior counsel for the appellants contended, that the non-appearance of the respondents in the witness box, in support of the additional issue No.1-A, would lead to a conclusion, that the findings of the learned lower appellate Court are perverse. This contention of the learned counsel for the appellants is misconceived. The defendant / appellants led evidence to prove issue No.1-A. by examining the Hand Writing Expert. The learned lower R.S.A. No. 1701 of 1986 17 appellate Court rightly appreciated the evidence on issue No.1-A, the finding cannot be said to be perverse. The pleadings of the parties and the findings recorded show, that the appellants No.1 & 2 were litigating this case by way of proxy on behalf of plaintiff No.3, who had chosen not to sign the plaint or become party. She became interested only after the decree passed by the learned trial Court. It is well settled law that fraud vitiates everything. When it is proved, that an attempt was made to play fraud with the Court and file plaint with forged signatures of plaintiff No.3, the appellants are not entitled to any relief from the Court. The 3rd substantial question of law is also answered against the appellants. Finding no merit in the appeal, it is ordered to be dismissed, but with no order as to costs. 9.3.2010 ( VINOD K. SHARMA ) 'sp' JUDGE