R.S.A. No. 927 of 1984 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 927 of 1984 (O&M) Date of Decision: 19.12.2008 Sant Ram and another ...Appellants. Versus Kulwant Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. R.L. Batta, Senior Advocate with Mr. Sanjay Tangri and Ms. Geeta Sharma, Advocates, for the appellants. Mr. K.S. Dadwal, Advocate for respondent No.1. Mr. HPS Ishar, Advocate for respondent No.3. AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant No.1 and the legal representative, namely, Mohinder Kaur of defendant No.2 is directed against the judgment and decree dated 26.9.1983 passed by the lower appellate court vide which the appeal filed by them was dismissed and the cross-objections filed by plaintiff No.1 and defendants No.6 to 8 had been accepted and the judgment and decree dated 22.12.1980 passed by the trial court decreeing the suit of the plaintiffs was modified to the effect that the plaintiffs and defendants No.6 to 8 shall be entitled to the delivery of the joint possession of the R.S.A. No. 927 of 1984 (O&M) -2- property in dispute from the remaining defendants. The facts leading to the third round of litigation are that Dr. Harchand Singh, the father of the plaintiffs and defendants No.6 to 8, was owner of the land measuring 1 kanal 9 marlas comprised in khasra No. 1756/306/5 now khasra No. 1412. In the year 1940, he constructed two shops thereon after obtaining permission from the Municipal Committee, Khanna and remained in possession of the same along with the passage by their's side and the vacant plot of land. It was pleaded that Dr. Harchand Singh had died on 11.5.1972 and at that time M/s Hans Raj Kidar Nath, Wine Contractors, were the tenants in both the shops. Thereafter, plaintiff No.1 rented out the said two shops, passage and the plot of land in the rear to one Tara Singh, Wine Contractor, Khanna from 1.4.1973 to 31.3.1974 and now the shops were on rent with defendants No.3, 4 and 5 at the rate of Rs.4800/- per annum. It was further pleaded that the plaintiffs and defendants No.6 to 8 had succeeded to the estate of Dr. Harchand Singh including the suit property and defendant No.3 had been paying rent to plaintiff No.1. According to the plaintiffs, defendant No.2 Gurdial Singh (since deceased) had no interest in the estate of Dr. Harchand Singh including the suit property who executed the sale-deed in favour of defendant No.1 on 8.10.1974. It was further pleaded that as defendant No.1 was having knowledge that the suit property did not vest in defendant No.2, therefore, the sale was illegal, void and inoperative regarding the same. Further, the mortgage in favour of Rajwant Singh by defendant No.1 was illegal and not binding on the plaintiffs and defendants No.6 to 8. On coming to know about the sale deed, plaintiff No.1 asked defendant R.S.A. No. 927 of 1984 (O&M) -3- No.1 to admit the successor-in-interest of Dr. Harchand Singh as owner in possession of the suit property but he refused to do so and that gave rise to the filing of the suit for declaration and permanent injunction restraining the defendants from taking the possession of the suit property. To controvert the averments made in the plaint, defendant No.1 filed a written statement raising various preliminary objections. It was pleaded that defendant No.1 was in possession of the suit property as owner since 8.10.1974, the date of sale and prior to the same he had been a tenant under defendant No.2 in a portion of the suit property since 1960, who was in exclusive possession thereof as owner. Defendant No.2 in his written statement pleaded that the suit property along with other property situated in Khanna, jointly vested in him, Dr. Harchand Singh and Bhagwanti after interest of his elder brother, Ram Narain, who was originally the Karta of the Joint Hindu Family was separated after prolonged litigation and in partition, the suit property together with other property had fallen to his share and he had been in exclusive possession thereof since 22.11.1951. It was further pleaded that defendant No.1 was his tenant in a specific portion from 1960 and that Dr. Harchand Singh had also orally abandoned his rights in the property of his share at Khanna. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether the plaintiffs and defendant Nos. 6 to 8 are owners in possession of the disputed R.S.A. No. 927 of 1984 (O&M) -4- property? OPP 2. Whether the plaintiffs and defendants 6 to 8 are entitled to the injunction prayed for? OPP 3. Whether defendant No.2 executed a valid sale- deed in respect of the disputed property in favour of defendant No.1? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is bad for mis-joinder of parties?OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the suit has been correctly valued for the purposes of Court-fee and jurisdiction? OPD 8. Whether the defendants are entitled to special costs u/s 35-A C.P.C.? OPD 9. Relief.” Further, the trial court framed the following additional issue:- “8A. Whether the suit is within limitation? OPD” The trial court took issues No.1 and 3 together being interconnected and on appreciation of the oral as well as the documentary evidence led by the parties came to the conclusion that the plaintiffs and defendants No.6 to 8 were owners but not in possession of the suit property. Further, it was held that defendant No.2 was not owner of the suit property and, therefore, was not R.S.A. No. 927 of 1984 (O&M) -5- competent to execute the sale-deed qua the same. Issue No.2 was decided against the plaintiffs and issues No.4, 5, 6, 8 and 8-A were decided against the defendants. Accordingly, the trial court vide judgment and decree dated 22.12.1980 decreed the suit of the plaintiffs holding that the plaintiffs and defendants No.6 to 8 were owners of the suit property and they were entitled to the joint possession of the same to the extent of 5/8th share. Feeling aggrieved, defendant No.1 and the legal representative of defendant No.2 took the matter in appeal. Plaintiff No.1 and defendants No.6 to 8 also filed cross-objections before the lower appellate court. The lower appellate court vide judgment and decree dated 26.9.1983 dismissed the appeal filed by defendant No.1 and legal representatives of defendant No.2 and while accepting the cross-objections filed by plaintiff No.1 and defendants No.6 to 8 modified the judgment and decree of the trial court to the extent that plaintiff No.1 and defendants No.6 to 8 would be entitled to the delivery of joint possession of the suit property from the remaining defendants. Hence, the present regular second appeal. Learned counsel for the appellant raised the following submissions:- a) That an admission made in a written statement or on oath statement, can be rebutted or explained by the party himself. The admission of Gurdial Singh in earlier written statement in civil suit No. 718 of 1939 has been explained by him as it has now been denied that Dr. Harchand Singh was the owner. Elaborating further, the learned counsel relying upon R.S.A. No. 927 of 1984 (O&M) -6- the Apex Court judgments reported in Rakesh Wadhawan and others v. M/s. Jagadamba Industrial Corporation and others, AIR 2002 SC 2004 and Divisional Manager, United India Insurance Co. Ltd. and another v. Samir Chandra Chaudhary, JT 2005 (6) SC 289 urged that the admission is only a piece of evidence and can be explained by a party. It shall not be treated to be conclusive and binding unless it amounts to estoppel. Even if there had been an admission, his share in a joint Hindu family property could not be relinquished without a registered document, particularly when Gurdial Singh was asserting proprietary right subsequently also. b) The learned counsel relied upon Durga Das v. The Collector and others, AIR 1996 SC 2786 and submitted that mutation does not confer any title and the presumption drawn by the courts below that the value of the property was less than Rs.100/- is erroneous and legally untenable. The finding that the property was less than of Rs.100/- is based on misreading and non-appreciation of evidence and is, thus, erroneous and legally unsustainable. By referring to Section 54 of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act”), the learned counsel on the strength of Division Bench R.S.A. No. 927 of 1984 (O&M) -7- judgment of this Court in Sardarilal and others v. Shrimati Shakuntla Devi, AIR 1961 Punjab 378 and single Bench judgment in Shishpal v. Vikram, 1991 (1) RCR (Civil) 628 submitted that no valid title could pass to Dr. Harchand Singh on the basis of an admission in the written statement without a registered instrument. On the basis of the above arguments, the following substantial questions of law have been claimed:- “1. Whether the admission made in the written statement or on-oath statement can be rebutted or explained by the party itself, who made it? 2. Whether in a joint family property, can a party or co-sharer relinquish his share by mere admission and without any registered document? 3. Whether the learned lower appellate Court was justified to hold that worth of the property was less than Rs.100/-, without any evidence on record?” Controverting the arguments of the counsel for the appellants, Mr. Dadwal, counsel for the respondents, on the other hand, pointed out that Gurdial Singh had relied upon decree Ex.P10 and had executed sale deed on 8.10.1974 whereas the said decree stood set aside vide Ex.P11. He also submitted that Gurdial Singh was punished R.S.A. No. 927 of 1984 (O&M) -8- by criminal court for trespassing in this property on 20.1.1952. Answering the question of registration, the counsel stressed that no pleading was there in the written statement and no objection was ever taken and accordingly no issue had been framed. Further, the counsel relied upon Sardara Singh and another v. Harbhajan Singh and others, 1974 PLJ 341, Ram Kishan and others v. Sheo Ram and others, 2008 (1) RCR (Civil) 334 (Full Bench), Hardit Singh v. Gulzara Singh and another, 1973 PLJ 329 and Sewa Singh v. Joginder Singh and others, 1986 PLJ, 113 to contend that in fact no registration of sale was required. I have heard learned counsel for the parties and do not find any merit in the appeal for the reasons mentioned hereafter. The core question that falls for adjudication in this appeal rests upon the decision on issue Nos.1 and 3. To put it differently, it would need attention of the court to record a finding regarding ownership of the property in dispute. The case of the plaintiff- respondents in the plaint has been that Dr. Harchand Singh, the father of the plaintiffs and defendants No.6 to 8, was owner of 1 kanal 9 marlas of land in khasra No. 1756/306/5 now khasra No. 1412 situated at G.T. Road, Khanna Kalan on which two shops had been constructed by him in 1940 from his personal funds after taking the requisite permission from the Municipal Committee, Khanna. On these premises, claim had been made to seek the declaration and possession regarding the shops and vacant land including the passage as given in the heading of the plaint. In order to prove the ownership of the property in dispute, the plaintiffs relied upon civil suit No. 718 of 1939 filed by Dr. R.S.A. No. 927 of 1984 (O&M) -9- Harchand Singh, their predecessor-in-interest, against the Municipal Committee and Gurdial Singh for permanent injunction restraining the Municipal Committee from demolishing any part of the shops which had been constructed by him. In the plaint filed in that suit (Ex.PX) in para 10, it was specifically averred that Gurdial Singh, defendant No.2 therein, was owner of the land to some extent in which building had been constructed but the same was transferred by oral sale to Dr. Harchand Singh. It was further stated that since no sale deed had been executed, therefore, Gurdial Singh was made defendant No.2 out of caution. Gurdial Singh had appeared and had filed written statement (Ex.PY) wherein while replying to the averments of the plaintiff therein, Dr. Harchand Singh, it was categorically stated that Dr. Harchand Singh was the sole owner of this property. Further, Basir Mohd. Patwari had appeared as a witness in the said suit and made a statement in court (Ex.PL) wherein it was stated that there was passage towards the East of Khasra No. 1757/306 and 1758/306 and that there was no passage between Khasra No. 1757/306 and 1758/306 on one side and 1756/306 on the other side. It was also deposed that mutation No. 2190 had been sanctioned and the plaintiff, Dr. Harchand Singh, had become sole owner of khasra No. 1756/306/5. The said suit was decreed on 12.6.1940 vide Ex.P8 whereby the civil court had held that the plaintiff Dr. Harchand Singh was owner of the plot A B C D including the way in dispute. Moreover, the defendant on 19.7.1979 had conceded before the Sub Judge that these documents related to the property in dispute. Furthermore, Gurdial Singh had filed civil suit No. 80 of 1953 challenging mutation against Dr. Harchand Singh in which issue R.S.A. No. 927 of 1984 (O&M) -10- No.2 was specifically formulated to the following effect:- “2. Whether the plaintiff is the owner of the land in suit? OPP” The trial court while dismissing that suit on 17.3.1954 held that mutation was sanctioned in favour of Dr. Harchand Singh on the basis of judgment dated 12.6.1940 and categorically recorded that Gurdial Singh was not owner of any portion of the land in suit. It was also observed that Dr. Harchand Singh was held to be owner of the suit land in an earlier litigation between the parties. On the basis of the aforesaid evidence, the irresistible conclusion is that the courts below have rightly held the plaintiffs along with defendants No.6 to 8 to be owner of the property in dispute as they are successors-in-interest of Dr. Harchand Singh who was the owner of the demised property. It is well established principle of law that an admission is the best piece of evidence. An admission cannot be treated to be conclusive and a party making an admission can explain the same. However, there is an exception to the aforesaid rule. Where an admission of a party amounts to an estoppel, it shall be conclusive and binding upon him. The evaluation of weightage to be given to an admission shall depend upon the facts and circumstances of each case. The rule of evidence enunciated in Rakesh Wadhawan's case (supra) and Samir Chandra Chaudhary's case (supra) do not advance the case of the appellants. In the present case, on the basis of an admission of Gurdial Singh, the Court had passed the judgment dated 12.6.1940 (Ex.P8) wherein Dr. Harchand Singh was recorded to R.S.A. No. 927 of 1984 (O&M) -11- be owner of the land in dispute. The finding regarding ownership of Dr. Harchand Singh was reaffirmed in another suit vide judgment dated 17.3.1954. It shall not be permissible for Gurdial Singh or his successor- in-interest to make an attempt to explain or now deny the admission made in the written statement (Ex.PY) which had culminated into passing of a decree and declaring Dr. Harchand Singh to be owner of the suit land and try to nullify the said decree without specifically challenging that judgment and decree. Moreover, a vested right had come into existence in favour of Dr. Harchand Singh. Furthermore, the proposition of law that mutation does not confer title is unexceptionable. However, the facts of the present case being different, no benefit can be derived by Gurdial Singh in that regard. Gurdial Singh had earlier filed a civil suit No. 80 of 1953 challenging the mutation which had been sanctioned on the basis of judgment dated 12.6.1940 and had failed as his suit for declaration was dismissed on 17.3.1954 (Ex.P9). The mutation having been upheld by the civil court would certainly confer title on Dr. Harchand Singh. The contention raised by the learned counsel for the appellants, thus, stands rejected. Lastly, as noticed earlier, the learned counsel for the appellants had submitted that since the value of the property was more than Rs.100/-, the same could not have been transferred without a registered document. This argument though appears to be attractive at its face value, does not carry any weight. Firstly, the argument now sought to be raised for the first time, no foundation had been laid by the defendant in the written statement by making any averment or pleading R.S.A. No. 927 of 1984 (O&M) -12- therein to that effect. Further, no objection in that regard was ever taken and, therefore, no issue was framed. Still further, it is undisputed that the provisions of Sections 54, 107 and 123 of the Act had been extended to the then State of Punjab w.e.f. 1.4.1955 and to the Pepsu area of the State of Punjab w.e.f. 15.5.1957 and, therefore, at the time when it was claimed by Dr. Harchand Singh that oral sale was made by Gurdial Singh in his favour, the provisions of Section 54 of the Act were not applicable. An application for additional evidence has also been filed by the appellants in order to show that the value of the property was more than Rs.100/- but that shall not have any impact on the decision of the case as the provision of Section 54 of the Act had only been extended to the then State of Punjab w.e.f. 1.4.1955 and, therefore, the application for additional evidence is rejected. The case law relied upon by the learned counsel for the appellants does not come to his rescue as those were the cases where the provisions of Section 54 of the Act were held to be applicable. Lastly adverting to the submission of the learned counsel for the appellants that Gurdial Singh was subsequently also asserting his rights and had executed sale deed dated 8.10.1974, Ex.D1, cannot be accepted. The claim of Gurdial Singh vide decree, Ex.P10, was set aside vide order dated 5.5.1953, Ex.P11, and no right vested in Gurdial Singh on that basis and no valid title by executing sale deed on 8.10.1974 could be transferred to defendant No.1. After the passing of the decree dated 12.6.1940, Gurdial Singh had been left with no interest or right in the suit property and his asserting a legal right without any basis shall not clothe him with ownership. . R.S.A. No. 927 of 1984 (O&M) -13- The substantial questions of law claimed by the appellants are, thus, answered against them. In view of what has been stated above, the present appeal fails and the same is hereby dismissed. There shall, however, be no order as to costs. December 19, 2008 (AJAY KUMAR MITTAL) gbs JUDGE