R.S.A. No. 711 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 711 of 1985 Date of decision:- 04.11.2011 Nasib Kaur ...Appellant Versus Devinder Singh Dhaliwal and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Ms. Shikha Sharma, Advocate for the appellant. None for the respondents. RITU BAHRI J. This regular second appeal is against the judgment and decree dated 2.2.1985 whereby the District Judge, Kapurthala has dismissed the appeal filed against the judgment and decree passed by Sub Judge 1st Class, Phagwara dated 31.1.1983 in Civil Suit No.283 of 15.9.1979. The plaintiffs had filed a suit for declaration that they are owner in possession of the land measuring 112 Kanals 16 Marlas of land fully described in the heading of the plaint, situated in the area of Village Bhakhariana, Tehsil Phagwara. The plaintiffs sought relief of permanent injunction restraining defendant No.1-Nasib Kaur from transferring the land in dispute in any manner and in the alternate sought relief of possession of the land mentioned in the heading of the plaint. In order to appreciate the controversy between the parties, the following pedigree table will be helpful :- Jamiat Singh (deceased) Mota Singh (deceased) Gurmit Kaur widow (pltf No.4) R.S.A. No. 711 of 1985 -2- Jamiat Singh (deceased) Devinder Singh (son) Pltf.No.1 Surinder Kaur (daughter ) Pltf.No.2 Kamaljit Kaur (daughter) Pltf.No.3 The property in suit was the joint Hindu family property of Jamiat Singh, Mota Singh and the plaintiffs, who are constituting a joint Hindu family. After the death of Jamiat Singh and Mota Singh, the plaintiffs became owners in possession of the suit property as under :- Davinder Singh 5/8th share Surinder Kaur 1/8th share Gurmit Kaur 1/8th share Kamaljit Kaur 1/8th share Smt. Nasib Kaur-defendant No.1 alleged that she had obtained a decree in her favour regarding the suit on 16.10.1976 in a suit captioned as Mota Singh and Nasib Kaur versus Jamiat Singh. The suit was filed on 24.9.1976 and a collusive decree was passed on 16.10.1976. The plaintiffs were not bound by this collusive decree, obtained on 16.10.1976, as no notice was served upon Jamiat Singh. Nasib Kaur-defendant No.1 belonged to Village Akarpur, Tehsil Nakodar, who was married to Avtar Singh of Chak No.54, RB.B. Tehsil Padampur, District Ganga Nagar. She gave birth to three daughters namely Surjit Kaur, Gurmit Kaur and Kamaljit Kaur. Nasib Kaur never performed any marriage with Mota Singh. Gurmit Kaur-plaintiff No.4 was married to Mota Singh and Davinder Singh, Surinder Kaur and Kamaljit Kaur were the children from this wedlock. The plaintiffs have stated that they are in possession of the suit land and defendant No.1 and defendant Nos.2 to 4 are threatening to take possession of the land forcibly. On notice, defendant No.1-Nasib Kaur filed written statement and took the objections that plaintiffs were not in possession of the suit land. Jamiar Singh had made a gift of the land in dispute to the extent of 1/3rd in favour of R.S.A. No. 711 of 1985 -3- Smt. Nasib Kaur and 2/3rd share in favour of Mota Singh. The gift deed was oral and recognized by a decree of the Civil Court dated 16.10.1976. Mota Singh and Jamiat Singh were parties to the suit and the present plaintiffs are debarred from challenging the said decree. The plaintiffs have filed the suit through their attorney as they were all residing in England. The defendant stated that Bhajan Singh is not the attorney of the plaintiffs. Defendant Nos.2 to 4 filed their written statement in which defendant No.4 stated that he has no interest in the property and is unnecessary party. Respondent Nos.2 and 3 are purchasers of the land to the extent of 1/3rd share belonging to and owned by Nasib Kaur, by way of a registered sale deed dated 27.3.1979 for a valuable consideration of Rs.38500/-. They are bonafide purchasrs and the plaintiffs are not entitled to claim the land comprised in the sale deed dated 27.3.1979. The plaintiffs are bound by the decree dated 16.10.1976 in suit Mota Singh and Nasib Kaur versus Jamiat Singh by virtue of which Nasib Kaur was declared to be the owner in possession of 1/3rd share in the suit land and defendant Nos.2 and 3 in their own rights are co-sharers to the extent of 1/6 and 1/2 share in the land mentioned. On the pleadings of the parties, following issues were framed :- “1. Whether Davinder Singh plaintiff is the son of Surinder Kaur and Kamaljit Kaur are the daughters and Gurmit Kaur is the widow of Mota Singh deceased?OPP 2. Whether the property in dispute was the Joint Hindu Family and co-parcenary property Mota Singh and Devinder Singh palintiff? OPP 3. Whether the decree dated 16.6.1976 obtained a Nasib Kaur and Mota Singh deceased against Jamiat Singh was collusive, illegal, null and void and not binding on the plaintiff as alleged in para No.4 of the plaint? OPP 4. Whether Bhajan Singh is the General Attorney and is competent to file the present suit? OPP 5. Whether the plaintiffs are in possession of the land in suit and if not whether the suit is maintainable in the present R.S.A. No. 711 of 1985 -4- form? OPP 6. Whether the suit is not properly valued for purposes of court fee and jurisdiction? OPD 7. Whether the suit is barred on the principle of resjudicata?OPD 8. Whether Nasib Kaur is the widow of Mota Singh decreased?OPD 9. Whether the suit is bad because of mis-joinder of the parties? OPD 10. Whether defendant No.2 and 3 are the bonafide purchasers for value and without notice?OPD 11. Whether defendant Nos.2 and 3 are the co-sharers in Khasra Nos. mentioned in para No.6 of the preliminary objections of the written statement independently of the sale made by Nasib Kaur in their favour?OPD 12. Whether the plaintiffs are estopped from filing the present suit by their act and conduct?OPD 13. Whether the suit is time barred?OPD 14. Whether the suit is barred u/o 2 Rule 2 CPC?OPD 15. Relief. From the evidence led by the plaintiffs i.e. Harbans Singh Sarpanch-PW1, Lachhman Singh-PW2, Karam Singh-PW3 and BhaganSingh attorney of the plaintiffs-PW4 stated that Mota Singh was the son of Jamiat Singh. Gurmit Kaur is widow and Mota Singh and Devender Singh is his son and Surinder Kaur and Kamaljit Kaur are daughters of Mota Singh. Nasib Kaur admitted in her statement that plaintiffs are sons and daughters and widow of Mota Singh. Harcharan Singh, who has been examined as DW2 has admitted the same facts. This issue No.1 was decided in favour of the plaintiffs. On issue No.2 the findings have been given that the property in hands of Jamiat Singh was acquired and it was joint Hindu Family property in the hands of Mota Singh and Davinder Singh. Accordingly this issue was decided in favour of plaintiffs and against the defendants. As regards issue No.3 whether the decree dated 16.10.1976 obtained by Naseeb Kaur was binding on the plaintiffs, the trial R.S.A. No. 711 of 1985 -5- Court, in order to prove this issue whether Jamiat Singh had made an oral gift on 15.1.1956 in favour of Naseeb Kaur and Mota Singh deceased. The plaintiffs have placed on record the jamabandi for the year 1967-68 (Ex.P8). Copy of jamabandi 1961-62 (Ex.P9) and copy of jamabandi for the year 1957-58 (Ex.P10). In all these copies of the jamabandies Jamiat Singh was ordered to be recorded the owner in possession of the suit property. The khasra girdawaries (Ex.P3 to P6) reveals that Jamiat Singh remained in cultivating possession of the suit land till the time his death in the year 1979. The possession of the suit land was never transferred to Naseeb Kaur-defendant No.1 and Mota Singh on account of any gift being made to them by Jamiat Singh in the year 1956. Hence, the story that an oral gift was made by Jamiat Singh does not stand test of time. While examining the decree dated 16.10.1976 the trial Court examined the vakalatnama executed by Jamiat Singh in favour of Manjit Singh, Advocate, who had appeared in civil suit No.411 Mota Singh and Smt. Nasib Kaur versus Jamiat Singh and made a statement admitting the statement of the plaintiffs and thereafter it was decreed on 16.10.1976. While examining the vakalatnama executed by Jamiat Singh, before the trial Court the thumb impression of Jamiat Singh on the written statement were with blue pen ink. There were two tick marks at the place upon which the thumb impressions of Jamiat Singh were affixed. The verification of the written statement was lower from the place where the thumb impression of Jamiat Singh was present. On the power of attorney thumb impression of Jamiat Singh is with the blue pen ink and there is also tick mark underneath this thumb impression. The trial Court came to conclusion that the thumb impression were obtained on some blank papers and blank vakalatnama. The tick marks were placed on the written statement and also on power of attorney. Statement was made by Dharampal Clerk as PW8, who had stated that the written statement on the summoned file of suit No.411 of 24.9.1976 (Ex.P9) was written by him. He stated that thumb impression of R.S.A. No. 711 of 1985 -6- Jamiat Singh and the tick marks were already there when he wrote the written statement. The thumb impressions wre not taken on the original written statement in his presence. The written statement was written in shorter words because the thumb impressions were already there. From the above facts the trial Court has given the finding that Jamiat Singh did not get the written statement scribed. He did not go to the Court to engage Shri Manjit Singh, Advocate and the thumb impression on two places were obtained on a blank paper. The decree dated 16.9.1976 has been obtained by fraud and illegal means and does not confer any right title. The findings on issue Nos.4,5,6,7 and 9 have been returned in favour of plaintiffs. As regards issue No.8 whether Naseeb Kaur is widow of Mota Singh. Naseeb Kaur appeared in the witness box as DW1. She examined Harcharan Singh as DW2, Lachhman Singh as DW3, Atma Singh as DW5 and Rattan Singh as DW6. The plaintiffs have examined Harbans Singh Sarpanch as PW1, Lachhman Singh as PW2, Karam Singh as PW3, Bhajan Singh as PW4, Kulwinder Singh as PW5 and Jit Singh as PW6. They have placed on record copy of voter list Ex.PA and copy of School Leaving Certificates Ex.PW4/2 and Ex.PW4/3. As per the evidence led by Nasib Kaur, she was married to Mota Singh for the last 25-26 years. The evidence led by the plaintiff especially PW5-Kulwinder Singh that he was resident of 54, RB, Tehsil Dadampur, District Ganganagar. He stated that Nasib Kaur, present in the court, was married to Avtar Singh, his brother about 27-28 years back. She gave birth to three daughters from the loins of his brother. Avtar Singh had died in the year 1972. PW6-Jit Singh, uncle of Avtar Singh stated that Nasib Kaur was married to his nephew-Avtar Singh, who had died about 7-8 years back. The daughters of Nasib Kaur and Avtar Singh are studying at at Ganga Wala at 54 RB, District Ganganagar. As per voter list Ex.PA Nasib Kaur has been shown to be the wife of Avtar Singh. As per certificate Ex.PW4/2 issued by the Head Master of a School at Ganuwal, Tehsil Padampur, District R.S.A. No. 711 of 1985 -7- Ganga Nagar, Gurmit Kaur and Gurjit Kaur are shown daughters of Avtar Singh and their dates of birth are 10.7.1967 and 15.8.1968. As per certificate Ex.PW4/3 Manjit Kaur daughter of Avtar Singh was studying in the school and her date of birth is 1.9.1970. From the evidence of Kulwinder Singh-PW5 and Jit Singh-PW6 it stands proved that Nasib Kaur was wife of Avtar Singh and gave birth to three daughters. After the death of Avtar Singh, she came to stay with her parents at village Akkarpur, Tehsil Nakodar, District Jullundur. It is possible that after 1976 she came in contact with Mota Singh. However, during the lifetime of Gurmit Kaur wife of Mota Singh, Nasib Kaur could not be treated as his wife as per Hindu Marriage Act, 1955. Gurmit Kaur wife of Mota Singh was in England and Nasib Kaur claim the title of wife of Mota Singh by residing with him in India. This issue has been decided by the trial Court in favour of the plaintiffs. Issue Nos.10 and 11 have been decided in favour of defendants and against the plaintiffs by holding that they are the bonafide purchasers of suit land from Nasib Kaur and by virtue of sale deeds they became joint owners of the suit land. Issue Nos.12,13 and 14 were decided in favour of plaintiffs and against the defendants as the onus for proving these issues was on defendants. They led no evidence to prove these issues, hence, these were decided against them in favour of plaintiffs. The suit of the plaintiffs was decreed that they are owners in equal shares of the land mentioned in heading of the plaint except 8 kanals of land i.e. 1/3rd share of khasra Nos.1111/8-0, 1113/8-0 and 1118/8-0 which was purchased by defendant Nos.2 and 3 vide sale deed dated 27.3.1979 Ex.DW4/1 and also excepting 1/6th shares of defendant Nos.2 and 3 over the land as per sale made in their favour. The suit of the plaintiffs against the defendant Nos.2 to 4 is dismissed. The Appellate Court dismissed the appeal filed by Nasib Kaur by affirming the findings recorded by the trial Court in view of the evidence led by the parties. It was held that there was no oral gift given by Jamiat Singh to R.S.A. No. 711 of 1985 -8- Nasib Kaur and Mota Singh in the year 1956. The collusive decree of 16th October, 1976 was as a result of fraud and misrepresentation. The plaintiffs did not challenge the trial Court decree, which was passed in favour of defendant Nos.2 and 3. Thereafter, that part of the decree has been attained finalty. Both the Courts have examined the evidence in detail and have rightly come to a conclusion that neither Nasib Kaur was legally wedded wife of Mota Singh and there was no oral gift given by Jamiat Singh to Nasib Kaur and Mota Singh, which resulted into collusive decree in civil suit No.411. This decree was obtained by getting thumb impressions of Mota Singh on blank papers. This finding has been recorded by examining the evidence on record. Nasib Kaur was married to Avtar Singh and have three daughters. She came to live with Mota Singh but was not legally married to him. The finding recorded by both the Courts did not require any interference and no substantial question of law arises for adjudication. The regular second appeal is dismissed. 04.11.2011 ( RITU BAHRI ) Vijay Asija JUDGE