R.S.A. No.1539 of 1982 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1539 of 1982 Date of Decision. 14.11.2011 Kaura Ram son of Sh. Ishar Dass son of Sh. Khota Ram Arora, resident of Hissar (through LRs) .....Appellant Versus Gobind Ram son of Krishan Dass (through LRs) and others ....Respondents Present: Mr. M.L. Sarin, Senior Advocate with Mr. Nitin Sarin, Advocate for the appellant. Mr. O.P. Goyal, Senior Advocate with Mr. Arun Sharma, Advocate for the respondents. 2. RFA No.2722 of 1994 Gobind Ram son of Krishan Dass (through LRs) .....Appellant Versus State of Haryana through the Collector and another ....Respondents Present: Mr. O.P. Goyal, Senior Advocate with Mr. Arun Sharma, Advocate for the appellant. Mr. O.P. Sharma, Addl. A.G., Haryana for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. R.S.A. No.1539 of 1982 -2- 1. The plaintiff, who filed the suit for declaration and for other reliefs is the appellant before this Court, alleged to have lost his suit both at the trial Court and at the District Court. The suit was for a declaration that the plaintiff was the owner in possession of the land measuring 26 kanals and 11 ½ marlas being the half share of land measuring 53 kanals and 13 marlas comprised in specific khasra numbers, which he claimed as owned by the plaintiff along with the 1st defendant. The suit also contained the prayer that certain decrees obtained by defendants No.2 and 3 with reference to specific items of properties were obtained on fraud and collusion and they were null and void. Even apart from the suit that resulted in consent decrees, the plaintiff also claimed that the sale executed by the 1st defendant in favour of the 3rd defendant on 28.11.1972 was invalid and not binding on the plaintiff. The basis of claim by the plaintiff was that the property purchased by the 1st defendant in respect of the entire extent of 53 kanals 13 marlas of land was benami in so far as the plaintiff's half share of the property was concerned. Both the trial Court and Appellate Court found that the property had indeed been benami transactions in which the plaintiff held half share, although the properties had been purchased in the name of the 1st defendant. However, the Courts below found that the 1st defendant had himself brought about transactions of sale and exchanged through his son property equivalent in value to the property obtained in his name and to satisfy the plaintiff's half share in the property that he had held in his name. The appellate Court observed that the 1st defendant had himself not challenged the findings and therefore, proceeded to R.S.A. No.1539 of 1982 -3- confirm the trial Court decree even as regards the finding that the decrees obtained by the tenants were fraudulent and not binding. It is these concurrent decisions that are in challenge in 2nd appeal before this Court on the following substantial questions of law:- (i) Whether the Courts below were justified in dismissing the plaintiff's suit for declaration of half share, although it accepted the contention of the plaintiff that the transaction of sales in favour of Gobind Ram were benami for the plaintiff's benefit to the extent of half share? (ii) Whether the Courts below were correct in holding that the transactions of sale and exchange respectively covered under P-2 and P-3 could be treated as transactions to satisfy the recognition of plaintiff's right in the property to the extent conveyed therein to constitute a full satisfaction of the plaintiff's claim through such transactions. 2. The transactions of sales and Court decrees will have been examined in chronological fashion to test the tenability of the contentions of the plaintiff raised in the suit. Some of the suit properties originally stood in the name of Savitri Devi and Ram Chander, who executed the sale deed in favour of the 1st defendant on 09.10.1969, while Wasu had executed the sale deed in favour of 1st defendant on 29.08.1969. The extent of properties covered under the two sale deeds was 53 kanals 13 marlas. It appears that during the R.S.A. No.1539 of 1982 -4- consolidation proceedings khasra No.236 measuring 4 kanals 19 marlas was taken away and in lieu thereof the property in khasra No.241 measuring 3 kanals 19 marlas was given. There was consequently deficiency of one kanal of land and the total extent left in the hands of 1st defendant was, therefore, 53 kanals 14 ½ marals and the half share of the plaintiff thus came 26 kanals 4 ½ marlas. The 1st defendant sold 4 kanals 16 ½ marlas comprised in Khasra No.4677 by registered sale deed dated 14.08.1970 for an ostensible consideration of Rs.2,000/- and it is an admitted fact that the plaintiff is in possession of the said property. Another extent of 19 kanals 1 marla comprised in certain khasra numbers 236-248 with sub divisions was also intended to be originally conveyed to the plaintiff but they had been in possession of the tenants and in order to avoid pre-emption suits at their instance, the property was exchanged with land of his son Chander Bhan on 11.08.1970, which the plaintiff claimed was a make believe affair for the motive of preventing any action at the instance of the tenants. The property, which the 1st defendant got under the so-called exchange was 21 kanals and 18 marlas and the said property was again conveyed in favour of the plaintiff on 21.08.1970 under Annexure P-3. In this fashion, the plaintiff got through the transactions 26 kanals and 4 ½ marlas of land. The plaintiff contended that he had not parted with any consideration for the two sales but there were devices to ensure that the plaintiff was compensated for the half share, which he was entitled in respect of the property purchased in the name of the 1st defendant benami for his benefit as well. R.S.A. No.1539 of 1982 -5- 3. To give a colour of plausibility to the transactions, the 1st defendant got filed two suits one at the instance of his son Ravi Kant described as 5th defendant that the sale deeds in favour of the plaintiff were invalid and would not bind him or affect his rights. It appears that the transaction of exchange which was brought out in the name of the plaintiff went into some trouble and therefore, the matter was referred to arbitration where the plaintiff and Ravi Kant are locked up in litigation. The said arbitration proceedings are still said to be pending awaiting the final adjudication in this case. The plaintiff claimed that the 1st defendant had himself admitted in the suit that the property purchased in his name belonged equally to the plaintiff and the consideration for the purchases in his name were equally shared between the plaintiff and the 1st defendant. It appears that the defendant Nos.2 and 3 namely Ballu Ram and Jagdish, who claimed as tenants of the property under Savitri and Ram Chander had filed suits against only the 1st defendant claiming pre-emption rights. Another person Sham Sunder also filed suit claiming pre- emption rights but it appears that it was dismissed when he did not deposit the pre-emption amount. The pre-emption suits were purported to have been compromised when 3rd defendant Jagdish obtained 10 marlas of land in khasra Nos.91-92 and got his appeal dismissed. The suit of Ballu Ram, the 2nd defendant, was decreed to the extent of half share of 15 kanals and 3 marals. The plaintiff claimed that in so far as the plaintiff was himself not made a party in those cases, he would not be bound by the decrees declaring rights of parties in the respective suits. R.S.A. No.1539 of 1982 -6- 4. The 1st defendant contended that the plaintiff was estopped by his conduct in filing the suit having taken the benefit of purchases through documents P-2 and P-3 in respect of properties to the extent of 4 kanals 6 ½ marlas and 21 kanals 18 marlas totalling 26 kanals 4 ½ marlas. Although the 1st defendant contended that the purchases by him were only out of his own resources, the learned Senior Counsel appearing on behalf of the defendant was prepared to concede that he does not assail findings rendered by the trial Court as well as the Appellate Court that the transactions were benami in so far as the plaintiff's half share is concerned. The 5th defendant Ravi Kant, who was the son of the 1st defendant filed his own written statement contending that his father was actual owner of the entire extent of property, not merely a benamidar and he had a right of pre-emption to interdict the sale of his father. The 5th defendant Ravi Kant had filed a suit against plaintiff with reference to sale deed dated 21.08.1970, which stood in the name of his father containing an extent of 21 kanals 18 marals was not binding on him since he had a right of pre-emption. He had filed yet another suit in possession challenging the other sale dated 20.08.1970 in favour of the plaintiff in respect of 4 kanals 6 ½ marlas containing similar allegations pleading for right of pre-emption. All the suits were taken together and disposed of by the common judgment. It can be from the timing that the plaintiff's suit that it was a counterblast action to rebuke the action of the 1st defendant's son Ravi Kant, who is the 5th defendant in bringing his suit claiming pre-emption in respect of the property sold by the father. Evidently, the plaintiff must have taken umbrage at R.S.A. No.1539 of 1982 -7- the fact that the 1st defendant, who had made the sales of the property in favour of the plaintiff to make good his entitlement by the fact that the entire extent of property had been originally purchased in the name of the 1st defendant himself but the property that justifiably came to his hand by instruments of transfer by 1st defenant were sought to be undermined by the 1st defendant by setting up his son. The trial Court and the Appellate Court have concurrently found that the Ravi Kant had no right to claim pre- emption since the document produced for the entire extent in the name of the 1st defendant was benami to the extent of ½ share of the plaintiff and transactions of sales, which were impeached by Ravi Kant were actually transactions to equalize the plaintiff’s entitlement for the benefit of half share which he had in the entire extent of the property. 5. Learned Senior Counsel appearing on behalf of the appellant makes an issue of the fact of how the exchange of property, which he had got with the 1st defendant and his son Ravi Kant has itself become subject of adjudication before the Arbitrator. The Court annuled all the transactions of sales and decrees in which he had not been made as party. If the trial Court and the Appellate Court had actually restored the status quo by holding that the properties were benami and the claim for pre-emption by the 1st defendant's son Ravi Kant was not tenable then justifiably the Courts could not have set aside the effect of the decrees obtained at the instance of the tenants claiming pre-emption against the property held by the 1st defendant. The third party could not be expected to file suits against the R.S.A. No.1539 of 1982 -8- plaintiff whose name did not figure in the document of purchase from Savitri Devi and Ram Chander. If the 1st defendant had suffered a nominal loss through compromise decrees, the plaintiff must take a share of such burden, for the property purchased by the 1st defendant cannot be taken unemcumbered and plaintiff, who claims the purchase to be benami must suffer the same liability as the 1st defendant as an ostensible owner suffered by the tenants. On an overall consideration, there had been substantial justice done in restoring to the plaintiff the benefit of transactions of purchase made in his name and the property that he obtained under exchange with the 1st defendant son. The validity of exchange need not be a subject of adjudication before this Court since it is already said to be pending before the Arbitrator. On an overall consideration, it could be noted that after deleting the extent of properties which are claimed by the tenants against the 1st defendant, the plaintiff had more than his half share in the remaining extent of property that stood in the name of the 1st defendant. Substantial justice has been done to him and it would be unfair on part of the plaintiff to stake a claim of the properties in claim and reopening the decrees that had been obtained at the instance of the tenants. 6. The trial Court was perfectly justified in observing that the transactions of sales in the favour of the plaintiff by the 1st defendant were really a mode of securing a half share of the property, which the plaintiff claimed in the properties purchased in the name of the 1st defendant. To that extent, the trial Court was again justified in saying that two sale deeds dated 28.07.1970 and 21.08.1970, the 1st R.S.A. No.1539 of 1982 -9- defendant Gobind Ram had really not transferred any ownership right in land to the plaintiff because the plaintiff was already an owner in respect of the same extent. It is difficult to understand from the appeal as to how the plaintiff was in any way aggrieved in the first place to prefer an appeal against the decision of the trial court. The Court has found that the transaction of sale in the name of 1st defendant is benami to the extent of half share and has also found that the transactions of purchases in the name of plaintiff was really a method of securing to the plaintiff the half share which he was entitled to. It had also found that even the compromise decree made with defendant Nos.2 and 3 were invalid. Once the Court had found that the document of purchase in the name of the plaintiff were intended to benefit him in half share in the property, it will be futile to reopen the compromise decrees, which the 1st defendant had obtained to satisfy the claim of the tenants, who were claiming pre- emption rights. When the defendants 1 and 5 had themselves not filed appeals against the trial court judgment and acceded to the trial court decree granting a half share as per purchases, treating the sale deeds in favour of the 1st respondent as benami to the extent of the plaintiff’s half share and when the claim of the 1st defendant was also rejected, there was no bona fides on the part of the plaintiff to still clamour for more rights by preferring this appeal. The RSA 1539 of 1982 is not a bona fide action at all and it is dismissed with costs of the contesting respondents. The trial court will be however subject to any modification that the plaintiff's entitlement would obtain by the final conclusion of the arbitral proceedings that remain pending R.S.A. No.1539 of 1982 -10- between the plaintiff and the 5th defendant Ravi Kant. 7. Although no appeal has been filed by any of the defendants No.2 and 3, I exercise my power under Order 41 Rule 33 CPC and set aside those findings and hold that the plaintiff will not be entitled to any more than what he has obtained through the documents Annexure P-2 and P-3. The challenge to the decree obtained by the defendants 2 and 3 against 1st defendant ought to fail and the plaintiff’s suit against the defendants 1 to 3 in respect of the said decrees is dismissed. This will mean that the decree of the trial Court and the Appellate Court will also stand modified to the extent of denying to the plaintiff any scope for challenging the compromise decrees that have been obtained securing to the respective tenants namely the respondent Nos.2 and 3 the satisfaction of rights in the manner done in the said decrees. 8. R.F.A. No.2722 of 1994 is against the decision of Reference Court in a dispute regarding apportionment of claim for compensation made under Section 30 of Land Acquisition Act. The Reference Court was also adjudicating on the adequacy of compensation, for reference had also been made under Section 18. The Reference Court observed that the compensation had been finally determined by the Hon'ble Supreme Court in contemporaneous proceedings regarding the very same acquisition and it finally determined the right at Rs.120/- per sq. Yard. While disposing of the reference under Section 30, the Court held that the issue of apportionment was also pending before the Hon'ble Supreme Court. The 1st defendant had alone preferred the appeal. The appeal is only against the order determining a R.S.A. No.1539 of 1982 -11- compensation. Learned Senior Counsel appearing for the appellant is prepared to admit that he is not making any argument as regards the compensation, which has already been determined by the Hon'ble Supreme Court. 9. RFA No.2722 of 1994 is consequently dismissed. (K. KANNAN) JUDGE November 14, 2011 Pankaj*