RSA No.3317 of 1984 RSA No.533 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Regular Second Appeal No.3317 of 1984 Date of decision : 31.05.2011 Joginder Kaur ….Appellant Versus Kaur Singh and others ….Respondents And Regular Second Appeal No.533 of 2011 Balraj Singh and others ….Appellants Versus Kaur Singh and others ….Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Shri Mr. J.R. Mittal, Sr. Advocate, with Mr. Kashmir Singh, Advocate, for appellant No.1-Joginder Kaur. Shri Sarjit Singh, Sr. Advocate, with Shri Jagdev Singh, Advocate, for respondent Nos.2 to 4-Balraj Singh, Darshan Singh and LRs of Janak Singh. Shri K.S. Chahal, Advocate, for respondent No.1-Kaur Singh. None for respondent No.2. JITENDRA CHAUHAN, J. RSA No.3317 of 1984 RSA No.533 of 2011 2 This judgment will dispose of two RSA Nos.3317 of 1984 and 533 of 2011, having arisen out of the same judgments and decrees of both the Courts below. Kaur Singh @ Jasbir Singh, minor, filed a suit through her mother, Surjit Kaur, for perpetual injunction against his father, Harminder Singh, defendant No.1, and his grandmother, defendant No.2, from alienating the land measuring 343 K, 11 M, and declaration that the land is a Joint Hindu Family Coparcenary property and that Mutation No.441 dated 31.7.1970, sanctioned in favour of Joginder Kaur, defendant No.2, is false and fictitious and will not have any bearing on the rights of Kaur Singh @ Jasbir Singh, plaintiff. The following pedigree table will be helpful in understanding the case:- Gurbachan Singh | | Gulab Singh Joginder Kaur (widow- defendant No.2) | Amrik Singh | Jit Singh | Harminder Singh (Defendant No.1) Surjit Kaur (Wife) | Kaur Singh @ Jasbir Singh (plaintiff) In brief, the facts of the present case are that Gulab Singh, Harminder Singh and Kaur Singh @ Jasbir Singh, constituted a Joint RSA No.3317 of 1984 RSA No.533 of 2011 3 Hindu Family and they jointly owned land measuring 343 K 11 M as fully described in the headnote of the plaint. It is alleged that the parties are governed by the Hindu Law. It is further alleged that Joginder Kaur, defendant No.2, got sanctioned Mutation No.441 dated 31.7.1977 in her favour in connivance with her son, Harminder Singh, defendant No.1. Hence, this suit. Harminder Singh, defendant No.1, and Joginder Kaur, defendant No.2, contested the suit jointly, pleading that the suit is not maintainable; Joginder Kaur, defendant No.2, is owner-in-possession of 215 K, 1 M, of land; land measuring 48 K, 10 M, has already been transferred to Sadhu Singh and Joginder Singh, sons of Keon Singh; land measuring 31 K, 12 M, was under mortgage with Rajbir Singh. It was further pleaded that the suit is bad for non-joinder of the necessary parties and the suit has become infructuous qua the defendant No.1, and that the defendants are neither the owner nor in possession of the property. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff and Harminder Singh defendant are the members of Joint Hindu Family and the suit property is their coparcenary property ? OPP 2. Whether the parties are governed by Hindu Law, if so to what effect ? OPP 3. Whether the suit is within limitation ? OPP RSA No.3317 of 1984 RSA No.533 of 2011 4 4. Whether the plaintiff is entitled to the injunction prayed for ? OPD 5. Whether the suit is bad for mis-joinder or unnecessary parties ? OPD 6. Whether the suit for mere declaration as alleged is not maintainable ? OPD 7. Whether the suit is not properly valued for the purposes of court fee ? OPD 8. Whether the suit has become infructuous as alleged ? OPD 9. Whether the plaintiff is residing under the guardianship of Smt. Surjit Kaur ? OPP 10. Relief. The Issue No.1 was decided in favour of the plaintiff holding that the parties are Hindus and the land being a Joint Hindu Family Coparcenary Property. While deciding Issue No.2, it was held that the parties are governed by the Hindu Law in view of the Full Bench decision of this Court in Pritam Singh Vs. Assistant Controller, 1976 PLR 343. The Issue No.3, was decided against the plaintiff holding that the suit is beyond limitation. While deciding Issue No.4, it was held that the plaintiff is entitled to injunction as prayed for. Issue Nos.5, 7 and 9 were not pressed while issue No.6 has become infructuous in view of the findings on Issue No.3. While deciding Issue No.8, it was held that the RSA No.3317 of 1984 RSA No.533 of 2011 5 suit land is Joint Hindu Family Coparcenary Property of the plaintiff qua defendant No.1. In view of the issue-wise findings, the learned trial Court dismissed the suit for declaration, however, the suit for permanent injunction, restraining the defendants from alienating the suit land to any other person was decreed. Smt. Joginder Kaur preferred civil appeal No.246/76 of 1982-84, against the judgment and decree dated 02.08.1984. Kaur Singh filed the Cross Objection No.376/A of 1982, challenging the findings of the trial Court dismissing the suit for declaration. The learned First Appellate Court dismissed the Appeal No.246/76 of 1982-84, filed by Joginder Kaur on 2.8.1984, and allowed the Cross Objection No.376/A of 1982, filed by Kaur Singh. In consequence thereof, the suit filed by Kaur Singh was decreed in its entirety. Still, feeling aggrieved against this judgment and decree dated 2.8.1984, Smt. Joginder Kaur preferred RSA No.3317 of 1984 on 14.11.1984. It is important to mention here that in the memo. of parties, Joginder Kaur, appellant, also impleaded Balraj Singh, Janak Raj and Darshan Singh, sons of Hardev Singh, as respondent Nos.3 to 5 who were not party before the two Courts below, besides Kaur Singh @ Jasbir Singh. The respondent Nos.3 to 5, were neither arrayed as party in the original suit nor in the first appeal. The Registry of this Court raised certain formal objections on 15.11.1984, which were removed by S. RSA No.3317 of 1984 RSA No.533 of 2011 6 Sarjit Singh, Advocate, the learned counsel for the appellant. The appeal was re-filed on 20.12.1984. It came up for hearing before the Bench on 21.1.1985 and this Court admitted the appeal on the same date for hearing. Respondent Nos.3 to 5, through their counsel, Shri Navkiran Singh, Advocate, filed an application bearing CM No.4151-C of 1986 under Order 1 Rule 10 CPC read with Section 151 CPC, for transposition of respondent Nos.3 to 5 as co-appellants. On 9.1.1987, this Court passed the following order:- “The CM is not being opposed. Hence it is allowed. Respondent No.3 to 5 be transposed as appellants as prayed.” In this CM application, Shri Jagdev Singh, Advocate for Shri Sarjit Singh, Advocate appeared for the appellants while Shri A.S. Khaira, Advocate, appeared for respondent No.1. For other respondents/applicants, only “-----------Shri----------” is written. The Registry corrected the memo of parties accordingly, in compliance with the aforesaid order. The respondent No.1, through his counsel, Shri K.S. Chahal, Advocate, filed CM No.12821-C of 2010, under Section 151 CPC with a prayer to delete the names of appellant Nos.2 to 4, from the array of the parties. This application came up for hearing along with the main appeal. During the pendency of this Regular Second Appeal, Smt. Joginder Kaur, appellant No.1 (the original appellant), filed CM No.5585-C of 2011, under Order 23 Rule 1 read with Section 151 CPC, RSA No.3317 of 1984 RSA No.533 of 2011 7 seeking permission of the Court to withdraw the regular second appeal No.3317 of 1984, on behalf of Joginder Kaur, appellant No.1. This application also came up for hearing along with the main case. During the pendency of this RSA No.3317 of 1984, when the appeal was listed for regular hearing at Sr. No.326, Balraj Singh, Darshan Singh, Jasbir Kaur and Jaswinder Kaur, widow and daughter Janakraj Singh, respectively, filed another RSA No.533 of 2011, challenging the impugned judgments and decrees dated 2.8.1984 of the Additional District Judge, Bathinda, passed in Civil Appeal No.246/76 of 1982-84. In this RSA No.533 of 2011, Kaur Singh @ Jasbir Singh, was impleaded as respondent while Joginder Kaur was impleaded as proforma respondent. This appeal is also being heard and disposed of by this judgment. This appeal is at the preliminary stage. Mr. J.R. Mittal, learned Sr. Advocate, at the very beginning submitted that he is withdrawing the appeal No.3317 of 1984, on behalf of Smt. Joginder Kaur, appellant No.1. He argues that after the withdrawal of the appeal, nothing survives and this appeal may be dismissed as withdrawn. Shri Sarjit Singh, learned Sr. Advocate, argued that this appeal cannot be allowed to be withdrawn, as there are other appellants, namely, Balraj Singh, Janakraj Singh (deceased through is LRs) and Darshan Singh, appellant Nos.2 to 4, who have interest in the property. While addressing arguments on merits of the case, S. Sarjit Singh, Sr. Advocate, submits that the judgments and decrees of the First Appellate Court are erroneous. He argued that the property in dispute is RSA No.3317 of 1984 RSA No.533 of 2011 8 not Joint Hindu Family Coparcenary property. He further argued that the parties are Jats and agriculturists, therefore, they are governed by customs and not the Hindu Law. He further argued that Mutation No.441, which was sanctioned on 31.7.1970, has only been challenged without challenging the Civil Court decree, on the basis of which, this mutation was sanctioned, that too after the expiry of three years. He argued that under Section 158 of the Punjab Land Revenue Act, the entries in the mutation proceedings cannot be challenged in a Civil Court and only remedy lies with the Revenue Authorities. He further argued that Joginder Kaur, appellant, had transferred some of the land and therefore, suit was not competent without joining the vendees. He further argued that during the lifetime of Gulab Singh and Gurbachan Singh, Kaur Singh @ Jasbir Singh, plaintiff, has no right to file the suit. Jeet Singh and Amrik Singh, brother of Gulab Singh, were also alive. The learned counsel for the proposed appellants further argued that the Lower Appellate Court has misread the material documents, i.e., the Mutation Nos.144, 159, 441 and 620 and has reached to the conclusions which are not warranted by the contents of these mutations. The Mutation No.144 was entered on the basis of partition as reported on 5.4.1952. Thus mutation was sanctioned on 19.1.1953. According to this mutation, Gurbachan Singh partitioned the land and kept ¼ share for himself and transferred ¾ share in favour of his sons Gulab Singh, Amrik Singh and Jit Singh. The Mutation No.441, shows that Joginder Kaur and Harminder Singh became owners in equal share of the land which was transferred to Harminder Singh by his father RSA No.3317 of 1984 RSA No.533 of 2011 9 Gulab Singh. this mutation was sanctioned on 19.3.1972, on the basis of judgment of civil court dated 11.7.1970. This judgment was neither impugned nor set aside. The judgment is otherwise valid. Joginder Kaur became owner of ½ share of the land in recognition of her right to be maintained and became full owner under Section 14 of the Hindu Succession Act. Even if, Gulab Singh wanted to partition the land, Joginder Kaur would have received equal share with her son. If Gulab Singh had not transferred the land, Joginder Kaur would have been entitled to succeed to her husband in equal share along with her son. Mutation No.620 was sanctioned on the basis of civil court decree dated 5.5.1980. He has further argued that the Courts below could not ignore the mutation No.441, without seeking to set aside the decree dated 31.7.1970. As Harminder Singh did not get the land vide mutation No.159 through inheritance, so the land in his hands could not be regarded as ancestral property. The share of Joginder Kaur would not be transferred to Harminder Singh by Gulab Singh. Shri K.S. Chahal, Advocate, learned counsel appearing for Kaur Singh @ Jasbir Singh, respondent No.1, raised a preliminary objection that appellant Nos.2 to 4, were strangers to the lis, who have no right to challenge the judgments and decree dated 2.8.1984, decreeing the suit in its entirety, by the learned Additional District Judge, Bathinda. Firstly, appellants No.2 to 4, were unauthorizedly and illegally arrayed as respondent Nos.3 to 5, and thereafter, they were transposed as appellant Nos.2 to 4 vide order dated 9.1.1987, which order is also illegal. RSA No.3317 of 1984 RSA No.533 of 2011 10 Shri Sarjit Singh, Sr. Advocate, raised the following substantial questions of law for determination of this Court:- 1. Whether the finding regarding ancestral nature of land is patently illegal ? 2. Whether the plaintiff had no right to file the suit while living with appellant ? 3. Whether suit was not complaint has plaintiff during life time of his father ? 4. Whether lower appellant court has misread the documentary evidence such as mutation ? 5. Whether Joginder Kaur is entitled to ½ share in the land ? 6. Whether court below has committed a patent error in ignoring the civil court decree ? 7. Whether the judgment of lower court is contrary to Section 14 of the Hindu Succession Act ? I have heard the learned counsel for the parties and carefully perused the record. It is a well-settled law that any aggrieved person, though he may or may not be a party to the lis, can challenge that judgment and decree in appeal but that could only be done under Order 41 Rule 20 CPC, with the permission of the Court. Order 41 Rule 20 CPC is reproduced as under:- RSA No.3317 of 1984 RSA No.533 of 2011 11 “20. Power to adjourn hearing and direct persons appearing interested to be made respondents.- (1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent. (2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.” Rule 2 of the Punjab and Haryana High Court Rules and Orders, Part C, Vol. IV, reads as under:- “2. Appeals by persons other than parties to the decree or order appealed from. – Whenever by a decree or order which is appealable to the High Court the interest of – (a) a beneficiary in property which at the date of such decree or order was vested in or in the possession of a trustee, an executor, an administrator, or a receiver or manager appointed RSA No.3317 of 1984 RSA No.533 of 2011 12 by a court who as such was a party to such decree or order; or (b) a legal representative as such of a deceased party to such decree or order; or (c) an assignee of a party to such decree or order by assignment subsequent to the date of such decree or order; or (d) a person whose interest arose after the date of such decree or order by reason of any creation or devolution of interest, by, through, or from any party to such decree or order is affected; and such beneficiary, legal representative, assignee, or person was not or has not been made a party to such decree or order or to proceedings thereunder or thereon and desires to present to the High Court for admission a memorandum of appeal from such decree or order, he may name himself therein as an appellant if at the time when he presents such memorandum of appeal for admission he along with such memorandum of appeal presents an application for leave to make himself an appellant, and, except as hereinafter provided, an affidavit stating such facts as may be necessary in support of his application : Provided always, that a Judge of the High Court may, by an order allow in his RSA No.3317 of 1984 RSA No.533 of 2011 13 discretion a reasonable time in that behalf for the presentation of such an affidavit, if it appears to him that the applicant could not by the exercise of due diligence have procured such affidavit in time for presentation along with the memorandum of appeal.” At the time of filing the RSA No.3317 of 1984, by Smt. Joginder Kaur on 14.11.1984, Smt. Joginder Kaur was incompetent for impleading Balraj Singh, Janakraj Singh and Darshan Singh as respondent Nos.3 to 5, as they were neither party in the suit nor in the appeal. No prior permission of this Court was sought before impleading them as added respondents. There is no mention even in the grounds of appeal that these respondents are being impleaded as added respondents for the first time in the Regular Second Appeal. The appellant has concealed this material fact deliberately from the Court. The Registry too has failed to take notice of the added respondents and passed the appeal in routine or with the mischief of some unscrupulous employee of this Court which needs to be probed. The mentioning of the names of the respondents Nos.3 to 5, in the memo of appeal for the first time in the regular second appeal without seeking prior permission of the Court is wholly illegal, null and void and has to be ignored. Thereafter on 13.12.1986, an application bearing CM No.4151-C of 1986, under Order 1 Rule 10 CPC, for transposing of respondent Nos.3 to 5 as co-appellants was filed, which was allowed on 9.1.1987, being unopposed. The presence of Shri A.S. Khaira, Advocate, has been marked on behalf of RSA No.3317 of 1984 RSA No.533 of 2011 14 respondent No.1. Respondent No.1, never engaged Mr. Khaira as his counsel and no memo of appearance or Vakalatnama on behalf of respondent No.1, is found on the record of this appeal. Moreover, except on 9.1.1987, at no point of time, Mr. Khaira represented respondent No.1 in this Regular Second Appeal. It is necessary to mention here that apart from this appeal, two other appeals bearing RSA Nos.1188 of 1986 and 1289 of 1986, have also been filed on behalf of Balraj Singh, Janakraj Singh and Darshan Singh through S. Sarjit Singh, Sr. Advocate. After filing of RSA No.1188 of 1986 and 1289 of 1986, even Balraj Singh, Janakraj Singh and Darsan Singh filed another RSA No.533 of 2011. On one hand, they are claiming themselves as co-appellants in RSA No.3317 of 1984, and on the other hand, they are filing another RSA No.533 of 2011, after the delay of about 26 years and 4 months. Thus, it is clear that without addition of respondent Nos.3 to 5 in memo of parties, the basis of the order for transposition is illegal and void and cannot be sustained in the eyes of law. Even on the date of transposition of Balraj Singh, Janakraj Singh and Darshan Singh, from the array of the respondents to the array of the appellants, their appeal was hopelessly time-barred and could not have been entertained. So, these persons have lost their right to contest the judgment and decree dated 2.8.1984, of the First Appellate Court. It is alleged that these persons have purchased the property during the pendency of the litigation. The vendors were not party either before the trial Court or before the learned First Appellate Court. For the first time, they were introduced as respondents at the time of filing the RSA No.3317 of 1984 RSA No.533 of 2011 15 present appeal. In this context, it is made out from that record that no effort was made by Balraj Singh and others to get themselves impleaded during the trial or during subsistence of the appeal in the First Appellate Court. They intruded for the first time by incorporating their names in the memo of parties as added respondents, in connivance with Smt. Joginder Kaur, appellant and subsequent thereto, an application for transposition was made on behalf of the added respondents which was allowed on 9.1.1987. As per the order-sheet, Shri A.S. Khaira, Advocate, caused appearance on behalf of the respondent. The learned counsel for the appellant and respondent, Joginder Kaur, categorically have made a statement at the bar that Mr. Khaira, was never engaged either by the appellant or by the respondent. Therefore, order dated 9.1.1987, for transposing would not be of any consequence. An application has also been filed for deleting their names from the memo of parties as appellant Nos.2 to 4, or as respondent Nos.3 to 5, as they were never party in the suit was in the appeal. In view of the statement of the learned counsel and the averments made in the application, it is averred in the application that the appeal filed by Joginder Kaur was dismissed by the Additional District Judge and Cross Objection of the applicant- plaintiff were allowed. RSA No.3317 of 1984, was filed on behalf of Joginder Kaur alone. However, names of Balraj Singh, Janakraj Singh and Darshan Singh, sons of Hardev Singh, were introduced in the memo of parties. Subsequently, an application was moved by respondent Nos.3 to 5 to get themselves transposed as appellants. These facts were not in the knowledge of the respondents. Shri Khaira is found marked present RSA No.3317 of 1984 RSA No.533 of 2011 16 for the applicant respondent. Shri Balraj Singh and others cannot be introduced as appellants and the appeal on their behalf is not maintainable. Accordingly, the order passed in the application dated 9.9.1997, stands recalled. The appellant, Joginder Kaur, who contested the suit has already prayed for the withdrawal of her appeal. Accordingly, the RSA No.3317 of 1984 is dismissed as withdrawn on behalf of Joginder Kaur, appellant No.1. Once the appeal filed by Smt. Joginder Kaur, the appellant, is withdrawn, who is the only competent person, this regular second appeal cannot be allowed to continue at the request or on behalf of the strangers or intruders i.e. added respondent Nos.2 to 4. The vendors i.e., Balraj Singh, Janakraj Singh and Darshan Singh, have no better right, title or interest than that of Smt. Joginder Kaur herself who contested the suit and the appeal tooth and nail before the Courts below. The vendees have no option but to sink and swim together with the vendor-appellant, Joginder Kaur. Joginder Kaur, the appellant, having withdrawn her RSA No.3317 of 1984, RSA No.533 of 2011, is also not maintainable being hopelessly barred by time. No sufficient ground has been shown for condonation of delay, hence, CM No.1422-C of 2011 in RSA No.533 of 2011 filed under Section 5 of the Limitation Act, is declined. RSA No.533 of 2011 is rejected. May 31, 2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to Reporter : Yes