RSA No.351 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.351 of 1988 Date of decision : 02.05.2011 Amarjit Singh ...Appellant Versus Manjeet Kaur ...Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Puneet Bali, Advocate for the appellant. Mr. Jai Bhagwan , Advocate for the respondent-Manjeet Kaur. Mr. Arun Jain, Sr. Advocate with Mr. Ankur Soni , Advocate, for the Sharanjit Kaur-applicant in CM No.2368 of 2004. JITENDRA CHAUHAN, J. (Oral) CM No.2368 of 2004 CM is allowed subject to all just exceptions. RSA No.351 of 1988 RSA No.3257 of 1988 and this Regular Second Appeal No.351 of 1988 are being heard together as both relate to the same subject matter between the same parties and the questions decided in both the appeals are similar. The appellant, Amarjit Singh has filed this Regular Second Appeal against the judgement and decree dated 14.11.1987, passed by the RSA No.351 of 1988 -2- Additional District Judge, Ludhiana, vide the judgment and decree dated 06.02.1987, passed by the Additional Senior Sub-Judge, Ludhiana, was partly modified to the extent of joint possession of the suit land in favour of Amarjit Singh and against Manjeet Kaur. Manjeet Kaur-respondent No.1 did not challenge the judgment and decree of the First Appellate Court. Amarjit Singh, filed a suit for declaration against his wife- Manjeet Kaur and her two brothers for declaration to the effect that he is the owner in possession of the land, as fully described in the head note of the plaint and for permanent injunction, restraining his wife-Manjeet Kaur and others from interfering in his possession as owner of the land in question. It is asserted in the plaint that he is in actual physical possession of the land. The same was allotted to him in lieu of the land left by him in Pakistan. The defendant and the plaintiff-appellant got married in the year 1953. They were blessed with a son. Unfortunately, the relations between them were not cordial. The plaintiff-appellant in order to rehabilitate his son-Mandeepak Singh, purchased a house for his son, where his son along with his mother- Manjeet Kaur resided. Mandeepak Singh married Sharanjit Kaur, appellant in RSA No.3257 of 1987, on 15.02.1981. When Mandeepak Singh was murdered on 31.10.1981 and Amarjit Singh plaintiff-appellant his father was arrested in murder case of his son, there arose a dispute regarding possession of the land owned and possessed by the Joint Hindu Family. Proceedings under Section 145 Cr.P.C., were initiated when Rabi 1982 crop was standing in the land. The possession continued with the Receiver as he did not deliver the possession of the property to anybody. The Receiver appointed by the Court of Executive Magistrate, Ludhiana under Section 145 and 146 Cr.P.C., was holding possession of the property on behalf of RSA No.351 of 1988 -3- the plaintiff. It is alleged that the defendants forcibly entered into the possession of the land, illegally and forcibly, after Rabi 1982. In this case, the plaintiff-appellant sought a relief of injunction if he is found in possession of the land or in the alternative if the defendants are found in possession of the disputed land, in that eventuality, a prayer is made for decreeing the suit for possession of the suit land. The defendants contested the suit on various grounds. It is alleged that suit is barred under the provisions of Section 10 CPC. It is further alleged that the land comprised of Khasra No.214, 215, 216, 217, 220, 221, 222, 1007/618/578-579/218-219, 1008/618/219-218, 223, 229, 230, 231 was owned and possessed by Mandeepak Singh, Advocate, son of the defendant No.1 and as such the plaintiff's suit is liable to be dismissed on both scores i.e. of ownership and possession. The residential house situated in Khasra No.360 was is also in possession of the defendant No.1. On the date of filing the present suit, the plaintiff was not in possession of the property as he himself was in jail and as such suit for possession is not maintainable and is liable to be dismissed. On merits, it is alleged that the land is a Joint Hindu Family coparcenary property being ancestral. Soon after the arrest of Amarjit Singh, the asnwering defendant No.1, entered into the possession of the entire property in dispute with the help of her father and brother defendants Nos.2 and 3 respectively and she is continuing to be in possession of the same till the filing of the suit. It is alleged that Santokh Singh-brother of Amarjit Singh and General Power of Attroney holder of the plaintiff is out to grab the entire property. In fact the receiver had taken the possesssion from the defendants for harvesting the Rabi crop for the year 1982 and after RSA No.351 of 1988 -4- harvesting the crop, he left the possession of the property and the answering defendants again took the possession of the property and started cultivating the land and till filing of the suit she was in possession of the property. From the pleadings of the parties the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land and is entitled to declaration prayed for? OPP 2. Whether plaintiff is entitled to relief of permanent injunction on the ground praued for? OPP 3. Whether this suit is barred under Section 10 CPC? OPD. 4. Relief. The following additional issues were also framed in this case on 22.12.1986:- 1A. Whether the plaintiff is entitled to the relief of possession in the alternative? OPP. 1B. Whether the plaintiff has taken inconsistent pleas if so its effect? OPD. The learned trial Court decreed the suit for declaration of the land as prayed for concluding that the plaintiff was an exclusive owner of the property in dispute but the possession of the property is with Manjeet Kaur, defendant no.1. Aggrieved against the judgment and decree dated 06.02.1987 of the Additional Senior Sub-Judge, Ludhiana, decreeing the suit for declaration and possession of the land in question, Manjeet Kaur wife preferred an appeal before the Additional District Judge, Ludhiana. The learned Additional District Judge partly accepted the appeal and modified RSA No.351 of 1988 -5- the judgment and decree to be and for joint possession of the suit land, in favour of Amarjit Singh and against Manjeet Kaur-appellant. The learned first Appellate Court held that the disputed land is ancestral. Amarjit Singh and Mandeepak Singh constituted the Joint Hindu family, it was their coparcenary property. It was further held that Mandeepak Singh was one of the two coparceners and his interest in the disputed land devolved by succession on his mother, Manjeet Kaur, and his widow, Sharanjit Kaur, in equal shares which on the plea of notional and deemed partition was ½ share, so that ¼ share in the suit land has fallen to share of Manjeet Kaur, mother and she is the owner of the same as one of the two successors/heirs of Mandeepak Singh, deceased. It was held that entitlement of Amarjit Singh is for joint possession of the suit land and not to the exclusive possession. It was, therefore, held that Amarjit Singh-plaintiff was owner to the extent of 3/4th share while Manjeet Kaur-appellant was onwer to the extent of 1/4th share in the suit land. Dissatisfied with the judgment of the First Appellate Court, Amarjit Singh preferred Regular Second Appeal No.351 of 1988 in this Court, which was admitted on 04.02.1988. The learned counsel for the appellant argued that the learned First Appellate Court has erred in ignoring Ex.P-1, the agreement, which proves that the husband and wife were having estranged relations and a sum of ` 50,000/- was paid as full and final settlement between them. The learned counsel further submits that Amarjit Singh is proved to be exclusive owner in possession of the land in dispute. The property in dispute is not Joint Hindu Family coparcenary property. Mr. Jai Bhagwan, Advocate, learned counsel for Manjeet Kaur- RSA No.351 of 1988 -6- respondent argued that in CM No.1807-C of 2003, Manjeet Kaur has placed on record an affidavit, whereby she admitted that Amarjit Singh-appellant was the absolute owner of the land, subject matter of the suit, and she recognized the rights of the persons mentioned in the will executed by Amarjit Singh on 26.03.1985, Amarjit Singh died on 25.01.2000. It is worth while to mention here that RSA No.3257 of 1988 and this regular second appeal No.351 of 1988 are being heard together. In RSA No.3257 of 1988 filed by Sharanjit Kaur-wife of Mandeepak Singh, this Court has come to the conclusion that the land in the hands of Amarjit Singh-appellant, was Joint Hindu Family coparcenary property. I have heard the learned counsel for the parties and perused the record of both the appeals with the able assistance of the learned counsel for the parties. Unfortunately, Amarjit Singh plaintiff-appellant, murdered his son-Mandeepak Singh on 31.10.1981. Amarjit Singh expired on 25.01.2000, while Manjeet Kaur-defendant expired in the year 2004. Only surviving member of the family is Sharanjit Kaur. The law point involved in this RSA is as under:- "Whether the findings of the learned First Appellate Court is perverse and against record." In the plaint Amarjit Singh did not make Sharanjit Kaur widow of Mandeepak Singh as defendant. However, in the plaint in para 3, he made specific mention that he had got educated Mandeepak Singh and even purchased a house for Mandeepak Singh to rehabilitate him. In the written statement Manjit Kaur took a stand that the property in question was RSA No.351 of 1988 -7- coparcenary property of the Joint Hindu Family. While the trial court decreed the suit of Amarjit Singh, the first Appellate court reversed it vide its judgment and decree dated 14.11.1987. In para 9-A and 10 the Appellate Court noticed as under:- “9A. With regard to the nature and character of the suit land there can be no doubt that the same was allotted to Amarjit Singh in lieu of the land left by him in Pakistan and this is his pleaded version. In the revenue records, Amarjit Singh has been shown to be the exclusive owner in possession of this land. It is also undisputed that when Amarjit Singh was arrested for the murder of his son Mandeepak Singh, suit land was taken possession by the Receiver under Section 145, Code of Criminal Procedure. Learned Trial Judge has found that after the crop of Rabi 1982 had been harvested, Manjit Kaur has taken possession of this land she is now in possession. Amarjit Singh's plea of exclusive ownership was sought to be negatived by the appellant by pleading that it was the coparcenary property of Amarjit Singh and Mandeepak Singh, so that after the death of Mandeepak Singh, she is entitled to ½ share as her (his ?) natural heir. Widow of Mandeepak Singh is alive, so that that widow and Manjit Kaur are the two natural heirs of Mandeepak Singh. There is no documentary evidence on file to connect the disputed land with Inder Singh, father of Amarjit Singh respondent but for this reason alone, it can not be said that coparcenary character of the land could not be proved. Documentary evidence in this case would not be available for the reason that Inder Singh, as stated RSA No.351 of 1988 -8- by Santokh Singh PW, has died in Pakistan. Santokh Singh PW is the brother and attorney of Amarjit Singh, plaintiff. It is correct that he had stated that disputed land was not ancestral, but what he concisely stated is like this, “Now we are two brothers, but we were four brothers in all. Fateh Singh, Charanjit Singh, Santokh Singh and Amarjit Singh are their names. Now I have 44 acres of land in my possession. I do not orally remember how much land is possessed by Fateh Singh and Charanjit Singh. We all had equal area of land in Pakistan and this land was inherited by all the brothers from our father. It is correct that disputed land and other land was allotted to us in view of the land left by us in Pakistan. Even in Pakistan we four brothers had equal area of land separately disputed land is not ancestral land. Amarjit Singh has not purchased the disputed land. President of India had allotted the disputed land to Amarjit Singh in view of the land left by him in Pakistan. It is correct that Mandeepak Singh is the son of Amarjit Singh and was born from the womb of Manjit Kaur. Amarjit Singh is bound by this statement of his brother attorney, Santokh Singh and it constituted admission of the disputed facts by him. Santokh Singh clearly and candidly admitted that disputed land was allotted to Amarjit Singh in lieu of the land which he had left in Pakistan and that the land left by him in Pakistan had been inherited by him from his father, Inder Singh and further that all this land had not been purchased by Amarjit Singh. In the face of this clear admission, opinion of Santokh Singh PW that disputed land was not ancestral is RSA No.351 of 1988 -9- meaning less. He admitted the relevant facts, but asserted against what is their natural effect. This admission of Santokh Singh was never retracted or otherwise proved to be wrong by any circumstances. It has not been disputed that there has been no partition of disputed land between Amarjit Singh and Mandeepak Singh. Observation of the learned Trial Judge that admission of Santokh Singh was of random nature is not justified, rather this admission is clear and unambiguous to find that disputed land is ancestral of Amarjit Singh and Mandeepak Singh and since they constituted Joint Hindu Family, it was their coparcenary property. The finding of the learned Trial Judge to the contrary is reversed. "10. Mandeepak Singh was one of the two coparceners and his interest in the disputed land devolved by succession on his mother Manjit Kaur and hiw widow Sharanjit Kaur in equal shares, which on the plea of notional and deemed partition was ½ share, as that ½ share in the suit land has fallen to Manjit Kaur appellant and she is owner of the same as one of the two successors/ heirs of Mandeepak Singh. Modifying the finding of the learned Trial Judge, therefore, it is found that Amarjit Singh plaintiff is owner to the extent of ¾ share while Manjit Kaur appellant is owner to the extent of ¼ share in the suit land.” That it may be submitted that while the above said suit was filed by Amarjit Singh without impleading Sharanjit Kaur as party though she was class-I heir, she filed an application for being impleaded as party under Order 1 Rule 10 CPC. However, this application was rejected by the learned RSA No.351 of 1988 -10- trial Court. Sharanjit Kaur has filed CM No.2368-C of 2004 in this Court under Order 41 Rule 20 read with Section 151 C.P.C., for being impleaded as a party. To the aforesaid application, a reply has been filed and it has been submitted that under Order 41 Rule 20, such an application is not maintainable as Sharanjit Kaur was not a party to this litigation. In an declaratory suit claiming title 'Class I' heir is necessary party, and even if any 'Class I' heir is not made party, his or her share is still required to be specified and can not evaporate. In a case where the question of title is involved or question as to whether the property is Joint Hindu Family property, every coparcener or his representative is necessary and proper party, and entitled to be heard for proper adjudication of the case. Mr. Arun Jain, Sr. Advocate has also been heard in this appeal as Manjeet Kaur- respondent has furnished affidavit in favour of appellant. No prejudice is likely to be caused to anybody. The findings have been recorded by the lower appellate court in its judgment dated 14.11.1987, to the effect that the property in question is joint Joint Hindu Family ancestral property, in view of the statement of Santokh Singh, attorney of Amarjit Singh- appellant and Bhagat Singh DW-1, attorney of Manjeet Kaur-respondent. The admission of Manjeet Kaur by way of affidavit filed in this Court that appellant is absolute owner of the property deserves to be ignored, because the land in the hands of Amarjit Singh is proved to be Joint Hindu Family coparcenary property. He has no right to execute the Will beyond his share regarding the property. In view of the statement of Bhagat Singh DW-1, attroney of Manjeet Kaur, who has stated in his examination-in-chief that Amarjit Singh and Mandeepak Singh constituted RSA No.351 of 1988 -11- a Joint Hindu Family and the suit land was their coparcenary property or that no partition ever took place between Amarjit Singh and Mandeepak Singh during their lifetime, she is estopped to connive with appellant here in this appeal. Now she cannot take U-turn in this Court. It is worth while to mention here that both the main coparceners namely Amarjit Singh and Mandeepak Singh have died. Amarjit Singh died on 25.01.2000 while Mandeepak Singh was allegedly murdered on 31.10.1981. The judgment recorded in RSA No.3257 of 1987 is also helpful in deciding the matter in controversy. The findings recorded by the learned first Appellate Court have been reached after proper appreciation of facts and law and no interference is called for. Keeping in view the totality of the circumstances, this appeal fails the findings of the First Appellate Court are affirmed and Regular Second Appeal No.351 of 1988 is hereby dismissed. 02.05.2011 (JITENDRA CHAUHAN) Jyoti 1/atulsethi JUDGE Note : Whether to be referred to Reporter ? Yes / No