RSA No.214 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.214 of 1990 (O&M) Date of Decision: 29.11.2011 Surjit Kaur & Ors. ...Appellants Vs. Joginder Singh (dead) represented by LRs. & Ors. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL --- Present: Mr.Akshay Bhan & Mr.Santosh Sharma, Advocates, for the appellants. Mr.Gur Rattan Pal Singh, Advocate, for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- A.N.Jindal, J. Both the courts below have dismissed the suit of the plaintiff/appellants (now represented by his legal representatives) (hereinafter referred to as the plaintiffs); hence this regular second appeal. RSA No.214 of 1990 2 The case pertains to a flagrant trauma, misuse of the courts by way of bringing law suits by distorting the facts in order to avoid previous judgments passed against them. Hazara Singh, plaintiff had filed a suit for declaration against the defendants alleging that Joginder Singh, Amar Singh and Gurbant Singh sons of Makhan Singh, now defendants Nos. 1 to 3 had 1/4th share in the land measuring 79 kanals 10 marlas out of which, the land measuring 87 kanals 11 marlas, as fully detailed in the head-note (a) of the plaint and they have no concern with the remaining land either of sub head (a) or (b) and they are not entitled to get the land partitioned on the basis of the mutation wrongly sanctioned in their names. Plaintiff and defendant Nos. 1 to 7 are recorded to be the owners of the land as per copy of jamabandi for the year 1980-81. Earlier, the contesting defendants had filed a suit for possession of the land measuring 79 kanals 10 marlas out of the land mentioned in the sub head (a) of the plaint claiming themselves to be the owners of specific khasra numbers in the civil court, Patti against the plaintiff and Smt.Taro defendant No.8. The said suit was decreed on 21.7.1969. Plaintiff had gone in appeal against the said judgment and decree. The first appellate court again dismissed the appeal and held the plaintiff to be owner of 1/4th share in the suit land measuring 79 kanals 10 marlas vide judgment dated 7.1.1970. Since the judgment dated 7.1.1970 has become final and still subsists, therefore, he cannot wriggle out of that. The plaintiff has further RSA No.214 of 1990 3 averred that defendants Nos. 1 to 3 had again filed a suit for possession for 1/4th share out of the land measuring 315 kanals 3 marlas which is the disputed land. The said suit was decreed by the court of Shri B.S.Teji, Sub Judge First Class, vide judgment and decree dated 12.4.1977. The plaintiff had filed appeal against the said judgment, which was accepted by Shri K.C.Diwan, Additional District Judge, Amritsar (as he then was) on 12.9.1980 resulting into dismissal of the suit. Thus the judgment passed by Sub Judge First Class, Patti and District Judge dated 7.1.1970 became final. It has further been averred that the plaintiffs are still claiming themselves to be owners on the basis of wrong entry in the jamabandi and the mutation sanctioned qua 1/4th share in favour of the plaintiff out of total land measuring 315 kanals 2 marlas are wrong and are liable to be corrected. Contesting defendants filed written statement wherein they raised some preliminary objections, inter alia, that the plaintiff has no cause of action to file the suit; the suit is bad for misjoinder and nonjoinder of necessary parties; the plaintiff has no locus standi to file the suit and the suit does not lie in the present form. On merits, it was submitted that defendant Nos. 1 to 7 are owners of the entire suit land. They had filed a suit for possession of the land measuring 79 kanals 10 marlas and the same was decreed. Even District Judge, Amritsar vide judgment dated 7.1.1970 had held the defendants to be owners of 1/4th share out of the entire land measuring 315 kanals 3 marlas. Filing of second suit by the RSA No.214 of 1990 4 contesting defendants for possession to the extent of 1/4th share out of entire suit land measuring 315 kanals 3 marlas was also admitted and that it was decreed on 12.4.1977. However, it was denied if the said judgment and decree was reversed in appeal. Thus, they averred that the defendants are the bona fide purchasers of 1/4th share of the land measuring 79 kanals 10 marlas i.e. 1/4th share out of land measuring 315 kanals 3 marlas. The trial court, vide order dated 22.9.1986, framed the following issues:- 1. Whether the defendants Nos. 1 to 3 have 1/4th share in the land mentioned in the heading of the plaint and have no concern with the remaining land?OPP 2. Whether the plaintiff has no cause of action against the defendants? OPD 3. Whether the suit is bad for misjoinder and non- joinder of the necessary parties? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5,. Whether the suit does not lie in the present form? OPD 6. Relief. Both the parties led evidence. The trial court while holding the defendants Nos. 1 to 3 to be the owners in possession of 1/4th RSA No.214 of 1990 5 share out of whole land measuring 315 kanals 3 marlas dismissed the suit of the plaintiff. Appeal preferred by the plaintiff was also dismissed on 12.12.1989. The substantial questions for determination of this court in this appeal are, as follows: 1. Whether the defendants No. 1 to 3 are the owners of 1/4th share out of total land measuring 315 kanals 3 marlas as fully detailed in the heading of the plaint? 2. Whether the suit for declaration in the present form is maintainable? Heard, undisputed facts are that the total land of the plaintiffs and defendants is 315 kanals 3 marlas, out of which the defendants No.1 to 3 purchased 1/4th share in specific khasra numbers. Sub Judge IInd Class, Patti vide judgment dated 21.7.1969 observed that defendant Nos.1 to 3 (plaintiffs in that suit) having purchased 79 kanals 10 marlas of land from Mst.Taro through Gujar Singh her Mukhtiar-e-Aam are the owners of the said land. Copies of judgment and decree dated 21.07.1969 are on record. Hazara Singh now plaintiff then had preferred the appeal against the aforesaid judgment, wherein District Judge, Amritsar vide judgment dated 7.1.1970 held that since Mst. Taro, the vendee had 1/4th share in the entire land (315 kanals 3 marlas) being not in exclusive possession, she could not alienate specific khasra numbers. Therefore, the defendant Nos. 1 to 3 were held to be the owners in RSA No.214 of 1990 6 possession of 1/4th share in the suit land. Since it was not clear in the judgment dated 7.1.1970 that defendants were owners in joint possession of 79 kanals 10 marlas of land or 1/4th share in land measuring 315 kanals 3 marla. The defendant Nos.1 to 3 filed a suit against the present plaintiff which was decided in favour of defendant Nos. 1 to 3. However, during appeal, the District Judge vide judgment dated 12.9.1980 accepted the appeal and clarified as under: “7. ................Mst.Taro was not in an exclusive possession of any portion of land measuring 315 kanals 2 marlas, and consequently she could not sell the specific khasra numbers of land measuring 79 kanals 10 marlas to the plaintiffs. It was also observed in the judgment that she was co-owner in the land measuring 315 kanals 2 marlas to the extent of 1/4th share and consequently she could sell only that share of the land and the sale was valid to that extent. The observations made by the learned District Judge, in the judgment Ex.D.2 were precise, unambiguous and clear to the effect that Mst. Taro being owner of 1/4th share in the total area of 315 kanals 2 marlas could make a valid transfer only to the extent of 1/4th share........” Aforesaid judgment refers to the judgment Ex.D.2 dated 7.1.1970 passed by the District Judge, Armitsar and in a way it RSA No.214 of 1990 7 clarifies the said judgment by holding that defendant Nos. 1 to 3 were owners in joint possession of 1/4th share in the total land measuring 315 kanals 3 marlas. There is also no denying a fact that Mst. Taro had 1/4th share in the total land measuring 315 kanals 2 marlas and she sold the same to defendants Nos. 1 to 3. Revenue authorities also held to the effect that they are co-sharers to the extent of 1/4th share in the land measuring 315 kanals 2 marlas. Copy of the order dated 21.11.1985 passed by Financial Commissioner (Appeals) Punjab is on record as Ex.D.2. Accordingly the first question is answered in favour of the respondents. As regards the second question, it would be expedient to refer to Section 34 of the Specific Relief Act which reads as under:- 34. Discretion of court as to declaration of status or right-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation-- A trustee of property is a “person RSA No.214 of 1990 8 interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.” From bare reading of aforesaid section it transpires that in a suit under Section 34 of the Specific Relief Act: (i) the plaintiff must be a person entitled to any legal character or to any right as to property (ii) the defendant must be a person denying, or interested to deny, the plaintiff's title to such character or right; (iii) the declaration sued for must be a declaration that the plaintiff is entitled to a legal character or to a right to property; and (iv) where the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief. Without elaborating to the depth, the aforesaid ingredients which are required to be fulfilled to maintain a suit under Section 34 of the Specific Relief Act, it would be suffice to say that person claiming any declaration may seek his legal character and right for which he is entitled. In the instant case, the plaintiffs have not sought any relief that he is entitled to any legal character or right to any property, he is asking to declare the right of the defendants which he acquired from the co-sharer namely Mst. Taro Devi. The RSA No.214 of 1990 9 plaintiff does not claim any right in the property of Mst. Taro which undisputedly has been sold to defendant Nos. 1 to 3. Relief of such nature which has been sought in this case, appears to me, does not fall within the scope of Section 34 of the Specific Relief Act. Thus, the 2nd question is also determined against the plaintiff/appellants. Furthermore, it would be pertinent to mention here that the plaintiffs are dragging the defendant Nos. 1 to 3 into litigation since 1967. Obviously with a view to make unfair enrichment to themselves by earning the fruits which ultimately would have fallen to the defendants and they are depriving them of their legitimate rights. Present suit has been filed by distorting the facts in order to make misuse of the process thereby causing damage to the defendants. As such the defendants No. 1 to 3 are entitled to damages of Rs.1,00,000/- (one lac) by way of mesne profits besides the costs of the litigation. Resultantly, the appeal is dismissed. (A.N.Jindal) 29.11.2011 Judge rp