RSA No.1369 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1369 of 1991 Date of Decision: 5.3.2009 Joginder Singh (Dead through L.Rs.) ..Appellants Vs. Mohinder Singh (Dead through L.Rs.) Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.S.C.Khunger & Mr.Sandeep Khunger, Advocates, for the appellants. Mr.H.S.Gill, Sr.Advocate, with Mr.R.K.Dhiman, 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. This is defendant's regular second appeal against the judgment and decree dated 30.10.1990 passed by the learned lower appellate court vide which the appeal filed the plaintiff/respondents was partly allowed and decree passed by the learned trial court was modified vide which the RSA No.1369 of 1991 2 plaintiff/respondents were declared to be owners in equal share of 4/5th share of the land measuring 252 kanals 13 marlas. They were further declared to have become owners of 1/8th share each of the remaining 1/5th share of the land which devolved upon their mother Smt.Chand Kaur on the death of Kirpal Singh. Possession was directed to remain in tact till the shares of the parties are separated by the revenue authorities in accordance with decree and in accordance with law. The plaintiff/respondents filed a suit for declaration to the effect that they are owners of the land measuring 252 kanals 13 marlas of land as also in possession of 90 kanals 17 marlas of land which was said to be part of 252 kanals 13 marlas. The plaintiffs filed a suit on the pleadings that Kirpal Singh alias Pala Singh was the owner of the land in dispute. Kirpal Singh was father of plaintiffs and defendants who executed Will dated 29.3.1971 in favour of the plaintiff/respondents and their mother Smt.Chand Kaur. Under the Will Smt. Chand Kaur was given a limited estate and the land of her share was to revert to the plaintiffs on her death. Plaintiffs claimed to have become the owners of the land in dispute. Kirpal Singh alias Pala Singh did not leave any property for Joginder Singh defendant as he was issueless and was not pulling on well with his father Kirpal Singh. Joginder Singh defendant filed a suit against the plaintiffs claiming share in the suit land. The plaintiffs propounded the Will in that suit. The suit filed by Joginder Singh was dismissed and appeal against the said judgment and decree also failed. RSA No.1369 of 1991 3 The finding of the validity of the Will, thus, became final as res judicata. Defendant Joginder Singh was said to be in illegal possession of the land measuring 90 kanals 17 marlas. The plaintiffs claimed that defendant was asked to deliver the possession to the plaintiffs but he refused to do so; hence the suit was filed. Defendants No.2 to 4 are the daughters of Kirpal Singh alias Pala Singh and they were impleaded as defendants being persons interested in the suit pursuant to the order dated 14.8.1987. Joginder Singh defendant No.1 resisted the suit whereas defendants No.2 to 4 did not contest the suit despite service and they were ordered to be proceeded ex parte. Joginder Singh, defendant pleaded in the written statement that he being the son of deceased Kirpal Singh alias Pala Singh was also a co- sharer in the suit land. He pleaded to be co-sharer being heir of his mother Smt.Chand Kaur who died as absolute owner of her property. It was claimed that Mukhtiar Kaur, Joginder Kaur and Basant Kaur being daughters of Kirpal Singh were necessary party and therefore, the suit was bad for non-joinder of necessary parties. Defendant No.1 claimed that Kirpal Singh alias Pala Singh effected a family partition/settlement and gave 1/6th share to him. A writing to this effect was made which was thumb marked by Kirpal Singh. The defendant claimed to be in possession of the land given to him. The defendant further claimed that as Kirpal Singh was father of the parties so this partition was not effected in the revenue record and after consolidation RSA No.1369 of 1991 4 the land measuring 93 kanals 8 marlas was given to the defendant and since then the defendant No.1 was said to be in possession as owner of the said land. Stand was also taken that Kirpal Singh did not execute any Will in favour of the plaintiffs as alleged. It was claimed that the Will was forged document. The defendant further claimed that if the said Will was proved then Smt.Chand Kaur who was given share in the land became absolute owner of the land of her share and the plaintiffs along with defendants were entitled to inherit her share. A plea of adverse possession qua land measuring 93 kanals 8 marlas was also raised. In the replication filed the plaintiff/respondents denied the averments made in the written statement and reiterated that of the plaint. On the pleadings of the parties the learned trial court was pleased to frame the following issues:- 1. Whether Kirpal Singh deceased executed a valid will dated 29.3.71 in favour of the plaintiffs? OPP 2. Whether the plaintiffs are in possession of the suit land? OPP 3. Whether the plaintiffs are entitled to injunction prayed for? OPP 4. Whether the plaintiffs are entitled to declaration prayed for? OPP 5. Whether the suit is bad for non-joinder of necessary parties? OPD RSA No.1369 of 1991 5 5A Whether the defendant is co-sharer in the suit land being heir of Kirpal Singh alias Pala Singh and also of Smt.Chand Kaur?OPD 5B Whether there was a family settlement between the parties in Harh 2004 and since then the defendant is in possession of the suit land as owner ?OPD 5C Whether the defendant is in adverse possession of the suit land for the last more than 12 years and he has become owner? OPD 6. Relief. The learned trial court took up Issues No.1 and 5-A together and on the basis of evidence on record decided issue No.1 in favour of the plaintiff/respondents and held that Kirpal Singh alias Pala Singh executed a valid Will dated 29.3.1971 in their favour. The challenge to Will was held to be barred by res judicata. On issue No.5A learned trial court was pleased to hold that Joginder Singh defendant/appellant became co-sharer with the plaintiffs and defendants No.2 to 4 in the land measuring 252 kanals 13 marlas being heirs of Chand Kaur. However, he was held to be not heir of Kirpal Singh alias Pala Singh in this land as he was disinherited by the Will dated 29.3.1971. The land was held to be self-acquired property in the hands of testator. Learned trial court took up issues No.2, 3 and 4 together being interconnected. On issue No.2 it was held that the plaintiffs were in RSA No.1369 of 1991 6 possession of 252 kanals 13 marlas of land less 90 kanals 17 marlas of land. Issue No.3 was also decided in favour of the plaintiff/respondents and it was held that the plaintiffs were entitled to injunction to retain possession of this land till partition is effected and that the defendant-appellant would not disturb their possession as they could get the possession by getting partition of the land. On issue No.4 it was held that the plaintiffs were owners of 1/5th share in 186 kanals 10 marlas of land by virtue of Will dated 29.3.1971 and in addition they were to inherit the land of the share of Smt.Chand Kaur equally with the defendants. The plaintiffs and each of the defendants were held to be owner of 1/9th share from 1/5th share of Smt.Chand Kaur. Issue No.5 was held to be redundant as subsequently the daughters of Kirpal Singh were impleaded as party. On issue No.5B learned trial court was pleased to hold that family partition/settlement as claimed was acted upon wherein he was given 10 ghumao of land when he was separated by his father Kirpal Singh and this land measuring 66 kanals 3 marals was given in family settlement. However, he was held entitled to retain possession of 90 kanals 17 marlas of land in dispute till the partition was effected as the land was still joint and parties were held to be co-sharers. It was held that Joginder Singh defendant is owner of 66 kanals 3 marlas out of 90 kanals 17 marlas of land detailed in part-B of the heading of the plaint which was given to him by Kirpal Singh alias Pala Singh in family partition/settlement. However, he was held entitled to retain possession till partition. On issue No.5-C, it was held that the possession of the RSA No.1369 of 1991 7 defendant was not adverse and therefore, it was held that the defendant was not in adverse possession of the land nor he became owner thereof. In view of the findings recorded above the suit was partly allowed and it was ordered as under:- “ The total land in dispute is 252 kanas 13 marlas Joginder Singh defendant is owner of 66 kanals 3 marlas land out of 90 kanals 17 marlas land detailed in part B of the heading of the plaint. It was given to him in family partition settlement by deceased Kirpal Singh. Joginder Singh defendant however is in possession of 90 kanals 17 marlas land. He can retain possession till partition is effected. Suit for possession of the plaintiffs regarding this 90 kanals 17 marlas land is dismissed. Out of the remaining 186 kanals 10 marlas land, the plaintiffs are owners of 4/5th share by virtue of will dated 29.3.71 of deceased Kirpal Singh alias Pala Singh. Smt. Chand Kaur was absolute owner of 1/5th share in this 186 kanals 10 marlas land. Each of the plaintiffs and each of the defendants is owner of 1/8th share from her 1/5trh share. The defendants would not disturb the possession of the plaintiffs and would seek possession of the land of their share by filing suit for partition. There is no order as to costs. Decree sheet be prepared accordingly.” The plaintiff/respondents preferred an appeal by raising two RSA No.1369 of 1991 8 points firstly as to whether Smt.Chand Kaur became full owner of suit land of 1/5th share of the suit land under the Will, copy of which is Ex.P.1 and the second whether the share in family settlement/partition between Joginder Singh and his father as per document Ex.D.5, consequently making the defendant owner of any land out of the suit land under family settlement/partition. Learned lower appellate court was pleased to hold that the decision of learned trial court that Smt.Chand Kaur having become full owner of 1/5th share of land left by Kirpal Singh in the Will is correct. In order to reach this conclusion, learned lower appellate court held that the Will reveals that Kirpal Singh had given 1/5th share of his land to his wife Smt.Chand Kaur in lieu of maintenance. The learned court held that it is true that in the Will it was stipulated that after the death of Smt.Chand Kaur her share would revert back to the plaintiffs but that has no effect in view of the settled law that after the land is given to wife in lieu of her pre- existing right of maintenance she becomes full owner of the property given to her in lieu of maintenance irrespective of the fact whether there is any rider on land or not. The conclusion of the learned trial court that Smt.Chand Kaur had become full owner by virtue of Section 14 (1) of the Hindu Succession Act and also in view of the judgment of Hon'ble Supreme Court in the case of Gulwant Kaur & another Vs. Mohinder Singh & others AIR 1987 SC 2251 was confirmed. However, on the second point learned lower appellate court RSA No.1369 of 1991 9 was pleased to hold that Ex.D.5 was an unregistered document which could not be said to be memo of partition or family settlement but it was deed of family partition or settlement itself. The court observed that in the said family settlement it was stipulated as under:- “The land which has been given to Joginder Singh would consist of 7 ghumas of barani land and 2 ghumas of Chahi land with turn of water”. Learned lower appellate court, thus, concluded that the learned trial court was not right in holding the document Ex.D.5 to be merely family arrangement/partition. Learned lower appellate court, thus, observed that as the document was not registered it did not create any right or interest in the property of Kirpal Singh in favour of Joginder Singh. The learned lower appellate court further held that though the land given to defendant worked out 66 kanals 3 marlas but he was said to be in possession of 90 kanals 17 marlas. Thus, the same could not be said to have been given under the said settlement as in the revenue record, he was recorded in possession of this land not as full fledged owner under any family arrangement/settlement but as son of Kirpal Singh. The learned lower appellate court also held that the land measuring 8 ghumas and 2 ghumas mentioned in the document was not detailed any where so the document is vague and did not confer any right or title in Joginder Singh. Learned lower appellate court was further pleased to observe that in the earlier litigation started by the defendant-appellant he had not taken the plea that he became owner of any such land under the document. RSA No.1369 of 1991 10 Learned lower appellate court observed that the defendant claiming himself to be owner of this land under the said document it was incumbent upon him to claim that right under the document in litigation but he had not claimed any such right. Thus, his claim was said to be barred under Order 2 Rule 2 of the Code of Civil Procedure. The learned lower appellate court also held that in the written statement dated 17.12.1986 he had taken the plea of possession in the capacity of a tenant to challenge the jurisdiction of the civil court. The learned lower appellate court, therefore, held that till the filing of the written statement dated 7.12.1986 he considered himself to be the tenant in the land and not as owner. Only in the amended written statement filed to the amended plaint this plea of ownership under family settlement was raised. Learned lower appellate court, thus, observed that the findings of the learned trial court on issue No.5B were wrong and therefore, were ordered to be set aside. The appeal was accordingly allowed. In view of the findings recorded above learned lower appellate court modified the decree passed by the learned trial court as under:- “In view of the above discussion, the appeal is hereby partly accepted and the decree of the trial court is hereby modified to the effect that the plaintiffs are hereby declared to be the owners in equal shares of 4/5th share of the land measuring 252 kanals 13 marlas described in para 'A” of the head note of the plaint under the will dated 29.3.1971. (copy Ex.P.1) of Kirpal RSA No.1369 of 1991 11 Singh. Besides, they are also declared to have become the owners of 1/8th share each. Of the remaining 1/5th share of the land which devolved upon their mother Chand Kaur on the death of Kirpal Singh and of which all the plaintiffs and defendants in the suit are owners in equal shares after the death of Chand Kaur. Since defendant Joginder Singh is owner to the extent of 1/8th share of 1/5th share of the land measuring 252 kanals 13 marlas mentioned above, he is a co-sharer in this land to that extent. The possessions would remain in tact will the shares of the parties are separated by the revenue authorities in accordance with this decree and in accordance with law. Decree-sheet be prepared accordingly and the file be consigned to the records.” This appeal earlier came up for hearing on 14.10.1996. The judgment of the learned lower appellate court was ordered to be set aside and that of the learned trial court was restored with no order as to costs. The judgment and decree passed by this court was challenged before Hon'ble Supreme Court by way of civil appeal No.414 of 1998. The appeal was accepted and Hon'ble Supreme Court has been pleased to pass the following order:- “ The only contention raised is that the High Court has fallen into an error in upsetting the judgment of the lower appellate court only on one ground that the document in question was a deed of family settlement and not a partition RSA No.1369 of 1991 12 deed; whereas there were other grounds also to support the judgment of the lower appellate court and to which the High Court has not adverted to. On hearing learned counsel, we find that the stand taken by the appellant's learned counsel is correct. The judgment of the lower appellate court bears ample material for the contention. We, therefore think that the matter should be put back to the High Court for re-decision of the appeal on grounds other than the ground on which decision has been taken. This part of the judgment we preserve while effecting a remand. The appeal is, thus, disposed of in this manner that the finding recorded by the High Court regarding the nature of the document in question shall remain sustained but the remand is made to examine the other points on which the judgment of the lower appellate court was based. Ordered accordingly. No costs.” Mr.S.C.Khunger, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law for consideration of this court:- 1. Whether the impugned judgment and decree passed by the lower appellate court is perverse? 2. Whether the provisions of Order 2 Rule 2 CPC are applicable to the appellant who was the defendant and not the plaintiff in the second suit filed by the RSA No.1369 of 1991 13 respondent/plaintiffs? 3. Whether the decision dated 26.9.1983 of the learned District Judge, Faridkot operates as res judicata between the parties in the present case in view of the provisions of Section 11 of CPC? 4. Whether the land given to a wife in lieu of her pre- existing right of maintenance, she becomes full owner of the land thereof in view of the provisions of Section 14 (1) of the Hindu Succession Act, 1956? In support of the substantial questions of law Mr.S.C.Khunger, learned counsel appearing on behalf of the appellant vehemently contended that learned lower appellate court committed an error in law in observing that the claim of the defendant-appellant was barred under Order 2 Rule 2 of the Code of Civil Procedure, even though appellant was defendant in the second suit. Order 2 Rule 2 of the Code of Civil Procedure reads as under:- “2. Frame of suit 1. xx xx xx 2. Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any RSA No.1369 of 1991 14 portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” There is force in this contention raised by the learned counsel for the appellant. It may be noticed that Order 2 Rule 2 of the Code bars the plaintiffs to sue by way of second suit with regard to the claim which is available to him at the time of filing of the first suit. However, it cannot be held that the defendant would be barred to take up the defence available to him in subsequent suit filed by the other party. Learned counsel for the appellant addressed arguments that the plea of the appellant was not barred by the principle of res judicata, primarily on the plea that in the present suit the cause of action was different as the plaintiff/respondents sought possession and declaration qua the land which was inherited by him under the family settlement. The contention of the learned counsel, therefore, was that the appellant cannot be held to be estopped from raising the plea raised as a defence to the suit filed by the plaintiffs. In support of this contention reliance was placed on the judgment of Hon'ble Supreme Court in the case of Deva Ram and another Vs. Ishwar Chand and another 1995 (6) SCC 733, wherein Hon'ble RSA No.1369 of 1991 15 Supreme Court has been pleased to law down as under: “21. Rule of res judicata is contained in Section 11 of the Civil Procedure Code, Bereft of all its Explanations, namely, Explanations I to VIII, Section 11 is quoted below: “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 and such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court” 22. “Res Judicata Pro Veritate Accipitur” is the full maxim which has, over the years, shrunk to mere “Res Judicata”. 23. Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence “Interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “Nemo debet bisvexari pro una at eadem cause” (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit RSA No.1369 of 1991 16 was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. 24. In the previous suit, which was instituted by the respondents, an issue, namely, Issue No.5 was framed on the status of the appellants as to whether they were the tenants of the land in suit under the respondents but in the subsequent suit this issue was not raised as the appellants were the defendants in the subsequent suit this issue was not raised as the appellants who were the defendants in the subsequent suits did not plead that they were the tenants under the respondents. What they pleaded was that they were in possession since a long time namely from Samvat 2005 and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit. It is true that the instant suit which is the subsequent suit,