RSA No. 152 of 2004 1 RSA No. 153 of 2004 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 152 of 2004 Date of Decision: 25.08.2009 Nanak Chand son of Smt. Khiliya daughter of Khachera resident of village Gharrot, Tehsil Hathin, Distt. Faridabad, now residing at village Deeg, Tehsil Ballabgarh, Distt. Faridabad. ... Appellant Versus 1. Decee, major; 2. Satish Kumar minor, sons of Sh. Ramchand; 3. Mehar Chand; 4. Amar Chand, both minor sons of Sh. Gopal son of Sh. Teeka minor appellant No. 2 through his natural father and next friend Ramchand and minor appellant No. 3 and 4, through their natural father and next friend Gopal son of Teeka, all residents of village Rakhota, Tehsil Palwal, Distt. Faridabad. 5. Ram Chand; 6. Gopal, both sons of Teeka son of Khachera, residents of village Rakhota, Tehsil Palwal, District Faridabad. ...Respondents 7. Teeka son of Khacheru son of Kallu, resident of village Rakhota, Tehsil Palwal, District Faridabad. ...Proforma-Respondent RSA No. 152 of 2004 2 RSA No. 153 of 2004 R.S.A. No. 153 of 2004 Date of Decision: 25.08.2009 Nanak Chand son of Smt. Khiliya daughter of Khachera resident of village Gharrot, Tehsil Hathin, Distt. Faridabad, now residing at village Deeg, Tehsil Ballabgarh, Distt. Faridabad. ... Appellant Versus 1. Decee, major; 2. Satish Kumar minor, sons of Sh. Ramchand; 3. Mehar Chand; 4. Amar Chand, both minor sons of Sh. Gopal son of Sh. Teeka minor appellant No. 2 through his natural father and next friend Ramchand and minor appellant No. 3 and 4, through their natural father and next friend Gopal son of Teeka, all residents of village Rakhota, Tehsil Palwal, Distt. Faridabad. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Jain, Advocate, for the appellant, in both the appeals. Mr. Raj Mohan Singh, Advocate, for the respondents, in both the appeals. SHAM SUNDER, J. * * * * This judgement shall dispose of RSA No. 152 of 2004, and RSA No. 153 of 2004, filed by Nanak Chand, plaintiff/appellant, RSA No. 152 of 2004 3 RSA No. 153 of 2004 against the judgements and decrees dated 29.08.03, rendered by the Court of Additional District Judge, Faridabad, vide which, it accepted the appeals of defendants No. 1 to 4/respondents, against the judgement and decrees dated 17.01.02, rendered by the Court of Civil Judge (Junior Division), Palwal, and dismissed the suit filed by Nanak Chand, whereas, decreed the suit filed by Decee and others. 2. Nanak Chand son of Smt. Khillia, was the owner in possession to the extent of 1 /2 share of agricultural land, measuring 77 kanals, 8 marlas, fully detailed, in para No. 1 of the plaint, situated within the revenue estate of village Rakhota, Tehsil Palwal, District Faridabad. On 09.04.94, he (Nanak Chand) suffered a consent decree of the land, in dispute, in favour of Decee, Satish Kumar, minor sons of Ram Chand, Mehar Chand and Amar Chand. Nanak Chand, challenged the said decree, on the grounds, that neither he appeared, in the Court, nor he engaged any Counsel. So, according to Nanak Chand, the decree, in question, was the result of fraud and misrepresentation. It was further stated that no family settlement took place and decree created right and title in immovable property worth more than Rs. 100/- for the first time, for want of registration was inadmissible. The defendants, were many a time asked, to admit the claim of the plaintiff, but to no avail. On their final refusal, left with no other alternative, a suit for declaration and permanent injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the RSA No. 152 of 2004 4 RSA No. 153 of 2004 suit. It was stated that the impugned decree was the result of family settlement, vide which, the plaintiff, admitted the claim of defendants No. 1 to 4, with regard to the land, in dispute. It was denied that the impugned decree, was the result of fraud, misrepresentation or was illegal, in any way. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck, in the suit filed by Nanak Chand, plaintiff:- (i) Whether the plaintiff is owner in possession to the extent of 1/6th share in the land, detailed in para No. 1 of the plaint, as alleged? OPP (ii) Whether the decree and judgement in suit No. 348/94 dt. 09.04.94 to the extent of the share of the plaintiff is null and void and is liable to be set aside? OPP (iii) Whether the plaintiff is entitled to injunction, as prayed for? OPD (iv) Whether the plaintiff has no locus- standi to file the present suit? OPD (v) Whether the suit is not maintainable? OPD (vi) Whether the defendants are entitled to special costs under Section 35A CPC? OPD (vii) Relief. 5. In the second suit, filed by Decee and others, it was stated that the plaintiffs were the owners in possession of the land, detailed in para No. 1 of the plaint, on the basis of family settlement culminating RSA No. 152 of 2004 5 RSA No. 153 of 2004 into the passing of decree dated 09.04.94. It was further stated that after the passing of the decree, the defendant (Nanak Chand), had no concern with the ownership and possession of the land, in dispute. He tried to interfere into their possession. They were many a time asked to desist from their designs, but no avail. Ultimately, a suit for permanent injunction was filed. 6. The defendant denied the averments, contained in the plaint by way of filing written statement. 7. On the pleadings of the parties, the following issues were struck, in the suit filed by Decee and others- (i) Whether the plaintiffs are owners in possession of the suit land, detailed in para No. 1 of the plaint? OPP (ii) Whether the suit is not maintainable? OPD (iii) Whether the plaintiff has no locus- standi and cause of action to file the present suit? OPD (iv) Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD (v) Relief. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of Nanak Chand, plaintiff/appellant, and dismissed the suit filed by Decee and others, plaintiffs/respondents. 9. Feeling aggrieved, two appeals were preferred by Decee RSA No. 152 of 2004 6 RSA No. 153 of 2004 and others, defendants No. 1 to 4, 6 and 7/respondents, which were accepted by the Court of Additional District Judge, Faridabad, vide judgement and decree dated 29.08.03. 10. Still feeling dissatisfied, the aforesaid Regular Second Appeals, have been filed by Nanak Chand, plaintiff/appellant. 11. I have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully. 12. The following substantial questions of law arise, in this appeal, for the consideration of this Court:- (i) Whether the first Appellate Court, misread and misappreciated the evidence and recorded perverse findings, that the consent decree dated 09.04.94, suffered by Nanak Chand and Tikka, in favour of the respondents, was legal and valid? (ii) Whether the first Appellate Court recorded a perverse finding on misreading of the evidence that some impostor, in place of Nanak Chand, was produced in the previous suit, in which, the decree dated 09.04.94, was passed? (iii) Whether the first Appellate Court, recorded a perverse finding, that the decree dated 09.04.94, was passed, on the basis of the family settlement, which had already been arrived at, amongst Nanak Chand, Tikka, and the respondents? (iv) Whether the first Appellate Court, recorded a perverse finding, against the provisions of law, that the decree dated 09.04.94, did not require registration? RSA No. 152 of 2004 7 RSA No. 153 of 2004 13. The Counsel for the appellant, submitted that the first Appellate Court, was wrong, in coming to the conclusion, that there was a legal and valid family settlement, amongst Nanak Chand, Tikka, and the respondents, as a result whereof, there was a pre-existing right, in the property, in dispute, in favour of the respondents. He further submitted that Tikka, was the maternal uncle of Nanak Chand, and, as such, the question of any family settlement, having taken place, amongst the parties, did not at all arise. He further submitted that the decree dated 09.04.94, created right, in immovable property, worth more than Rs. 100/-, for the first time, and required registration, but the first Appellate Court, was wrong, in coming to the conclusion, that it did not require registration, and validly conferred title upon the respondents. He further submitted that even Nanak Chand, never appeared, in the Court, for suffering decree, in favour of the respondents, but some impostor, was put up, in his place, who suffered the statement of admission of the claim of the respondents. He further submitted that the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, resulting into dismissing the suit of Nanak Chand, and decreeing the suit of the respondents, against Nanak Chand. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 14. On the other hand, the Counsel for the respondents, submitted that there was a legal and valid family settlement. He further RSA No. 152 of 2004 8 RSA No. 153 of 2004 submitted that Nanak Chand, and Tikka, were joint owners, in joint possession of the land, in dispute. He further submitted that the concept of family settlement is very wide. He further submitted that on account of family settlement, there was a pre-existing right, in favour of the respondents. He further submitted that the decree, did not create right, in immovable property, worth Rs. 100/- or more, for the first time. He further submitted that Nanak Chand, himself appeared, in the Court, and suffered the decree. He further submitted that no impostor, was produced, in his place. He further submitted that, even the Counsel, were engaged by Nanak Chand and Tikka, as also by the respondents, in whose presence, the statements, were made. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 15. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. There is, no dispute, that Khachera, was the common ancestor of the parties. In the jamabandi P1, Ram Swaroop, and Rajinder sons and Smt. Rajwati and Amarwati daughters of Shera son of Khachera, have been recorded, as co-owners, to the extent of 1/6 share of the land, in dispute. Tikka and Chhaju sons of Smt. Sunhera and Kishan daughter of Khachera, son of Kallu, have been recorded to be the co-owners, to the extent of 1/6 share, in the land, in dispute. Nanak Chand, son of Smt. Khilia daughter of Khachera, and Tikka, RSA No. 152 of 2004 9 RSA No. 153 of 2004 suffered a consent decree of their share, in the land, in dispute, in favour of Decee, Satish Kumar,, Mehar Chand, and Amar Chand i.e. the grand-sons of Tikka, in civil suit No. 348 of 1994, on 09.04.94, on the basis of family settlement. In Ram Charan Das Vs. Girj Nandini Devi, AIR, 1966 (SC) 323, it was held as under, by the Apex Court:- “Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word 'family' is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having a right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and good will amongst the relations. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter.” “The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parities. Every party who takes benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.” RSA No. 152 of 2004 10 RSA No. 153 of 2004 16. In Kale and others Vs. Deputy Director of Consolidation and others, AIR 1976, (SC), 807, the Apex Court, held as under:- “The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same.” 17. In Tek Bahadur Bhujil Vs. Debi Singh Bhujil and others, AIR 1966 (SC) 292, the Apex Court, held as under:- “Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is be founded. It is generally prepared as a record of what have been agreed upon, in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged, and where the arrangement is brought about by the document as such, that the document requires registration, because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under Section 17 of RSA No. 152 of 2004 11 RSA No. 153 of 2004 the Registration Act.” 18. Similar principle of law was laid down in Jagdish and others Vs. Ram Karan and others, (2003-1), PLR, 182, Ved Pal alias Vedu Vs. Smt. Raj Rani (2003-1), PLR, 455 and K. Raghunandan and others Vs. Ali Hussain Sabir and others, 2008(3) RCR (Civil), 699. From the principle of law, laid down, in the aforesaid cases, it is evident, that concept of family settlement, has been construed, in the wider sense. Even if, one of the parties, to the settlement had no apparent antecedent title but under the arrangement, the other party relinquishes all its claims or title, in favour of such a person and acknowledges him to be sole owner then antecedent title was to be presumed and the family settlement was liable to be upheld. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the present case. The parties, to the lis, were having the common ancestor, in the name of Khachera. Under these circumstances, it could not be said, that the family settlement, which was arrived at, amongst them, was illegal or invalid. The submission of the Counsel for the appellant, that there was no legal and valid family settlement, being without merit, must fail, and the same stands rejected. The first Appellate Court was,thus, right in coming to the conclusion, that it was, on the basis of a legal and valid oral family settlement which was arrived at, amongst the parties, that a suit was filed by respondents No. 1 to 4, against Nanak Chand and Tikka, wherein, they admitted their claim, and the decree was passed. The findings of the RSA No. 152 of 2004 12 RSA No. 153 of 2004 first Appellate Court, in this regard, being correct, are affirmed. 19. It is evident from the documents exhibits D1, D2 and D4, certified copies of the written statement, statement of admission, and memo of parties, respectively, that civil suit titled as 'Decee and others Vs. Tika and another', with regard to the land, in dispute, was filed on 01.04.94, in the Court of Sh. Ashok Bhardwaj, Additional Senior Sub Judge, Palwal, wherein, Tikka and Nanak Chand, filed a joint written statement admitting the claim of ownership of Decee and others, with regard to the land in dispute. Even their joint statement, in writing, in this regard was also recorded, on the same day, and both of them were identified by Chander Singh Jhakar, Advocate. On the basis of the admission of claim of Decee etc. the plaintiffs, in that suit by Nanak Chand, and Tikka, the decree dated 09.04.94 was passed. Under these circumstances, it could not be said that Nanak Chand, did not appear in the suit, nor did he make any written statement of admission and statement of admission, but some impostor was put up in his place. If Nanak Chand, was not personally known to Chander Singh Jhakar, Advocate, then, there was no question of his identifying him. No doubt, Chander Singh Jhakar, Advocate, when appeared in the Court, as PW2, stated that Nanak Chand, was not known to him. The first Appellate Court, was right, in coming to the conclusion, that no reliance, could be placed, on the statement of Chander Singh Jhakar, Advocate, in this regard. No complaint, was made to the Police, immediately by Chander Singh Jhakar, Advocate, except filing the RSA No. 152 of 2004 13 RSA No. 153 of 2004 complaint on 29.11.94, that the person who appeared as Nanak Chand, was not actually Nanak Chand. Even the first Appellate Court, compared the disputed signatures of Nanak Chand with his specimen signatures and came to the conclusion that the same tallied with each other. Naresh Kataria, DW1, Handwriting and Finger Prints Expert, also compared the disputed signatures of Nanak Chand, on the written statement of admission filed in the suit, referred to above, with his specimen signatures on complaint dated 29.11.94, titled 'Nanak Chand Vs. Decee and others', in the Court of Sub Divisional Judicial Magistrate, Palwal, and came to the conclusion that the same tallied with each other. The first Appellate Court was, thus, right in coming to the conclusion that it was Nanak Chand, who appeared in the Court and admitted the claim of the respondents, who were plaintiffs, therein, on the basis whereof, the decree was passed. The decree was thus rightly held to be not the result of fraud or impersonation by the first Appellate Court. 20. The next question, that arises for consideration, is, as to whether, the decree dated 09.04.94, created right, in the respondents, in immovable property, worth Rs. 100/- or more for the first time. There was earlier a family settlement amongst the parties, as a result whereof, the property in question fell to the lot of the respondents, who were plaintiffs, in the earlier suit. It means that before passing the decree, the respondents who were plaintiffs therein, were having pre-existing right. The decree dated 09.04.94, only acknowledged the pre-existing RSA No. 152 of 2004 14 RSA No. 153 of 2004 right in respondents No. 1 to 4 (plaintiffs therein). So it could not be said that the decree created right in the immovable property, worth Rs. 100/- or more in the respondents, who were plaintiff therein for the first time. On account of that reason, the decree did not require registration. 21. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the appellant, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the first Appellate Court, are liable to be upheld. The substantial questions of law, depicted above, are answered, against the appellants. 22. For the reasons recorded above, the instant Regular Second Appeals, being devoid of merit, must fail, and the same are dismissed. 25.08.2009 (SHAM SUNDER) Amodh JUDGE