R.S.A. No. 1491 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1491 of 2010 (O&M) Date of decision: 07.04.2010 Sher Singh and another ....Appellants Versus Siri Kishan and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. R.S. Mittal, Sr. Advocate, with Mr. Atul Gaur, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal, by the plaintiff/appellants, is directed against the judgment and decree dated 23.2.2010, passed by the learned Courts below, vide which the suit for declaration filed by the plaintiff/appellants, was ordered to be dismissed. The plaintiff/appellants filed a suit claiming, that they are owners in possession in equal shares of agricultural land measuring 247 kanals 17 marlas situated at village Ghasola, Tehsil Charkhi Dadri, District Bhiwani, as per jamabandi for the year 1995-96. The plaintiffs also challenged the judgment and decree dated 23.9.1975, passed in civil suit No.378 of 1975 to the extent of 1/3rd share and also mutation No.850 dated 31.7.1978. Consequential relief of permanent injunction was claimed, restraining the defendant/respondents from alienating the suit land by way of sale, transfer or exchange. The plaintiff/appellants claimed, that they were sons of Tara R.S.A. No. 1491 of 2010 (O&M) -2- Chand son of Beg Raj. Dharmu @ Dharam Chand and Daulat Ram were real brothers of Tara Chand, who were having no issue, therefore, they adopted sons of Tara Chand i.e. the plaintiffs. Plaintiff No.1 was adopted by Daulat Ram, vide registered adoption deed dated 14.10.1964, and plaintiff No.2 was adopted by Dharmu @ Dharam Chand, vide registered adoption deed dated 14.10.1964. The land was joint agricultural land of Dharmu @ Dharam Chand and Daulat Ram. Whereas Tara Chand was having separate khewat, from his two brothers. The plaintiffs claimed that after death of Daulat Ram, the entire estate, including half share of the suit land, was inherited by plaintiff No.1, because Dalat Ram was not survived by any other person, as he was unmarried and was not having any male or female issue. Similarly, Dharmu @ Dharam Chand, who died unmarried and issueless, had adopted plaintiff No.2, therefore, he was entitled to inherit the assets left by deceased Dharmu @ Dharam Chand. The plea raised was, that in view of the adoption of the plaintiffs, they acquired all rights, which accrue to the natural born sons in the family, under the Hindu Law. The disputed property in the hands of Dharmu @ Dharam Chand and Daulat Ram, was said to be ancestral in nature, as they inherited the same from their father. The plaintiffs claimed themselves to be the coparceners of the suit property. The case of the plaintiff/appellants was, that the defendants, taking advantage of their good relations with Dharmu @ Dharam Chand and Daulat Ram, by way of misrepresentation, got suffered a collusive decree dated 23.9.1975 in civil suit No.378/1975 from Dharmu @ Dharam Chand and Daulat Ram. The decree was illegal, null and void and result of fraud and misrepresentation, as such not binding on the rights of the R.S.A. No. 1491 of 2010 (O&M) -3- plaintiffs. The grounds of fraud and misrepresentation pleaded were as under: - “a) That Daulat Ram and Dharmu @ Dharam Chand had never appeared in the Court to make statement regarding decree of their land in favour of defendants. b) That they have never engaged any lawyer nor recorded any statement before Court. c) That suit property was ancestral in nature in which plaintiffs have got right by birth as such legally this property cannot be given by deceased to the defendants without consent of plaintiffs. d) That impugned judgment and decree was passed on the basis of family settlement whereas the family settlement between them was not possible because defendants are separate branch of co-parcenary units headed by defendants and deceased wee having separate coparcenary units. Even the property between Tara Chand and deceased Daulat Ram and Dharmu @ Dharam Chand were separate. e) That possession of the land cannot be handed over to defendants, because khewat was joint between Daulat Ram and Dharmu @ Dharam Chand and as such 1/3rd of the land measuring 247 kanals 17 marlas has been allegedly given to defendants. f) That defendants had no pre-existing rights in the disputed land, so impugned judgment and decree without registration has got no value and no title on the basis of impugned judgment and decree. The plaintiffs have been continuing owners of disputed land in equal share. g) That it is unnatural to say that the deceased in the R.S.A. No. 1491 of 2010 (O&M) -4- presence of their own sons would give their land to defendants.” The mutation in pursuance to the decree was sanctioned on 31.7.1978. The plaintiffs claimed that they were entitled to 1/3rd share of the total land measuring 247 kanals 17 marlas. It was pleaded that the plaintiffs came to know about the judgment and decree, when the defendants started claiming that they were the owners of the total land measuring 247 kanals 17 marlas. The plaintiffs asserted themselves to be in the possession of whole land. In the alternative it was pleaded, that they were entitled to claim possession of the suit land. The suit was contested, wherein preliminary objection was raised regarding maintainability, locus standi, estoppel and concealment of true and material facts. On merits, it was admitted that Tara Chand, Dharmu @ Dharam Chand and Daulat Ram were real brothers and that Dharmu @ Dharam Chand and Daulat Ram had separate khewat, whereas Tara Chand was given separate khewat during consolidation with mutual consent. It was denied, that after the death of Dharmu @ Dharam Chand and Daulat Ram, plaintiffs inherited ½ share. It was claimed that Dharmu @ Dharam Chand and Daulat Ram were having 1/3rd share each at the time of death of their father and the mutations of inheritance of Dharmu @ Dharam Chand and Daulat Ram were already sanctioned in favour of the defendants, therefore, the plaintiffs had knowledge of the transfer in their favour. It was denied, that the judgment and decree dated 23.9.1975 was outcome of misrepresentation or was null and void. It was claimed by the defendants that during the lifetime of Dharmu @ Dharam Chand and Daulat R.S.A. No. 1491 of 2010 (O&M) -5- Ram, defendants and their father were providing services to them and they were happy with their services. It was pleaded that about 37 years ago a family settlement was arrived at between the father of defendant No.1 and his uncle Dharmu @ Dharam Chand and Daulat Ram, vide which 1/3rd share of the land measuring 82 kanals 12 marlas out of the total land measuring 247 kanals 17 marlas, was given to the answering defendant and it was agreed, that they would incorporate his name in the revenue record. Since then the answering defendant was in possession of the land. It was also pleaded case of the answering defendant, that as their request to incorporate his ownership in revenue record was not accepted as per family settlement, civil suit No.378 dated 22.9.1975, in which Dharmu @ Dharam Chand and Daulat Ram appeared and filed written statement and also got recorded their statement. The suit was decreed on 23.9.1975 and mutation was sanctioned thereafter. The decree was voluntarily suffered with consent. It was denied, that Dharmu @ Dharam Chand and Daulat Ram had not appeared in the Court. It was also denied, that defendant/appellants had any pre-existing right as Dharmu @ Dharam Chand and Daulat Ram had received land from their common ancestor. It was claimed, that plaintiffs had knowledge of the decree from its very inception and a false plea was taken, that they came to know about it recently to avoid the limitation. Defendant No.2 filed separate written statement admitting the claim of the plaintiffs and sought setting aside of the judgment and decree. Defendant No.3 took the stand, which was taken by defendant No.1. R.S.A. No. 1491 of 2010 (O&M) -6- In replication averments made in the plaint were reiterated and those of written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiffs are owners in possession of the suit property? OPP 2. Whether the plaintiffs are adopted sons of Daulat and Dharmu deceased respectively, if so, to what effect? OPP 3. Whether the impugned judgment and decree passed in civil suit no.378 of 1975 by the Court of the then Sub Judge Ist Class, Charkhi Dadri under title Siri Kishan etc. Vs. Dharam etc. is illegal, null and void and not binding upon the rights of the plaintiffs and consequently the mutation no.850 attested on the basis of said judgment and decree is also null and void and the revenue record is accordingly liable to be corrected? OPP 4. If issues no.1 to 3 are proved, then whether the plaintiffs are entitled for the relief of permanent injunction as prayed for? OPP 5. Whether the suit of the plaintiffs is within limitation? OPP 6. Whether the suit is not maintainable as the plaintiffs have no cause of action to file the present form? OPD 7. Whether the plaintiffs are estopped to file the present suit by their own act and conduct? OPD 8. Whether the suit is false and frivolous? OPD 9. Relief.” Issues No.1 to 5 were taken up together. On appreciation of evidence, the learned trial Court came to the conclusion, that all the five sons of Tara Chand received equal land, after suffering decree dated R.S.A. No. 1491 of 2010 (O&M) -7- 23.9.1975. The learned trial Court, therefore, came to the conclusion, that family settlement was arrived at only to make the equal distribution of land among all the sons of Tara Chand. The learned trial Court also held, that mutation on the basis of decree was sanctioned on 31.7.1978. The learned trial Court took note of the fact, that mutation of inheritance of Dharmu bearing No.958 dated 30.6.1985 Ex. D16 was sanctioned in favour of Ram Chander one of the plaintiffs being his adopted son. Similarly, mutation of inheritance of Daulat Ram bearing No. 969 dated 4.4.1983 Ex. D15 was sanctioned in favour of Sher Singh being his adopted son. The learned trial Court held that the plaintiffs, had the knowledge about their shares, in view of the mutations referred to above. The learned trial Court also noticed that vide Ex.D5 dated 11.12.1989, rapat roznamcha was sanctioned in favour of Sher Singh, which showed that plaintiff Sher Singh was having knowledge about his share in the property in question. The learned trial Court, therefore, relied upon the judgment of the Hon'ble Supreme Court in Ram Charan Das Vs. Girja Nandini Devi and others, AIR 1966 SC 323, to hold that a compromise between the parties in the previous suit was family settlement which was binding on them. The Hon'ble Supreme Court in the said case held, that the family settlement entered into between the parties, who are members of a family, bona fide to put an end to the dispute among themselves, is not a transfer. Reliance was also placed on the judgment of the Hon'ble Supreme Court in Kale and others Vs. Deputy Director of Consolidation and others, AIR 1976 SC 807, to hold that a family settlement must be a bona fide one so as to resolve family dispute and rival claims by a fair and equitable division or allotment of properties between the various members of the R.S.A. No. 1491 of 2010 (O&M) -8- family. This was the case, as in pursuance to decree, all the sons were given equal shares. In Prabhu Lal Vs. Laxmi and others, 2007(1) RCR (Civil) 199, this Court was pleased to hold, that the brothers and sisters arriving at family settlement with regard to property inherited by them, decree passed by Court on basis of said settlement is valid one. The learned trial Court held that Dharmu @ Dharam Chand and Daulat Ram suffered consent decree, in order to transfer some piece of their land in favour of defendants to make distribution equal among sons of Tara Chand. The most important finding recorded by the learned trial Court was, that Dharmu @ Dharam Chand and Daulat Ram never challenged the decree dated 23.9.1975 during their lifetime, nor raised any objection at the time of sanctioning of mutation dated 31.7.1978. The learned trial Court held, that though the plaintiffs were adopted sons but still Dharmu @ Dharam Chand and Daulat Ram had love for all the sons of Tara Chand, so the consent decree was bona fide, for equal distribution of the land, among five sons of Tara Chand. The learned trial Court also found, that in the suit filed by the defendant/respondents, notice was issued in which Dharmu @ Dharam Chand and Daulat Ram appeared and filed written statement Ex.D1, admitting the claim of Krishan, Ram Kumar and Rohtash. Their statements were recorded in the Court Ex.D2 and Ex.D4, and thereafter decree was passed. These were duly proved in evidence. The learned trial Court held, that all the brothers by way of mutual settlement had equally distributed, their coparcenary land, therefore, the R.S.A. No. 1491 of 2010 (O&M) -9- consent of the plaintiff/appellants was not required. The learned trial Court also held, that as the decree was with regard to the settlement already arrived at, and it did not require any registration. The learned trial Court also found, that as a fact the plaintiff/appellants failed to establish even single ingredient of fraud which resulted in passing of consent decree. The learned trial Court also held that mutations of inheritance were sanctioned in the years 1983 and 1985, in favour of both the plaintiffs, so they had knowledge of the decree. As Dharmu @ Dharam Chand and Daulat Ram had not challenged the consent decree during their lifetime nor it was challenged by the plaintiffs being adopted sons. The suit to challenge the decree was held to be barred by limitation, as the period of limitation prescribed was three years under Section 58 of the Limitation Act. The learned trial Court also held, that the plaintiffs had no locus standi to challenge the decree after lapse of more than 36 years. The suit, therefore, was held to be hopelessly barred by time. Issues No.1 to 5 were, therefore, decided against the plaintiff/appellants. Issues No.6 to 8 were decided against the defendants as not pressed. Consequently, the suit was ordered to be dismissed. The findings recorded by the learned trial Court were affirmed by the learned lower appellate Court and the appeal was dismissed. Mr. R.S. Mittal, learned senior counsel, appearing on behalf of the appellants, contended, that this appeal raises the following substantial questions of law: - “1. Whether the learned Courts below were justified in R.S.A. No. 1491 of 2010 (O&M) -10- deciding all the five issues (issues No.1 to 5 in the suit) without considering them separately and whether this confusing discussion of all the issues together has resulted in illegal and perverse judgments? 2. Whether the suit of the plaintiff/appellants is within limitation under Article 65 of the Limitation Act, 1963, whereunder a suit for possession on the basis of title is not barred by limitation unless the defendants pleaded and prove that they have been in adverse possession of the disputed property for more than 12 years from the date of the filing of the suit? 3. Whether the plaintiff/appellants were validly adopted as their sons by registered deeds of adoption dated 14.10.1964 (Ex.P1 and P2) by their respective adoptive fathers? 4. Whether there was a disruption of the Joint Hindu Family and the property of the joint family between Dharmu @ Dharam Chand and Daulat Ram on the one hand and Tara Chand on the other in 1958-59 at the time of separation of their khewats during consolidation operations in the village and if so, whether thereafter, the land measuring 247 kanals 17 marlas became the exclusive property jointly owned by Dharam Chand and Daulat Ram as their separate properties? 5. Whether in the year 1975 and more particularly on 23.9.1975, the defendant/respondents had any pre- existing right or interest in the separate exclusive property of Dharam Chand and Daulat Ram? 6. Whether the civil Court judgment and decree (Ex.P28 and P29) dated 23.9.1975 are illegal, null and void and not binding on the rights of the plaintiff/appellants because: - R.S.A. No. 1491 of 2010 (O&M) -11- a) The decree (Ex.P29) was not registered. b) The judgment and decree dated 23.9.1975 are based upon fraud played upon the court and upon Dharam Chand and Daulat Ram. c) The circumstances and the facts proved beyond doubt that Dharam Chand and Daulat Ram never filed any admission statement (Ex.D1) nor made any statement in Court on 23.9.1975 (Ex.D2) and did not engage a counsel to represent them and were in fact not present at the time of the fraudulent judgment and decree (Ex.P28 and P29) on the same day. The facts and circumstances of the case clearly prove a blatant and apparent fraud upon the court played by the defendants on 23.9.1975 when civil suit No.378 of 1975 was filed and on the same day without any notice the defendants of the said suit were allegedly present in Court to make a consenting written statement (Ex.D1) and a statement in Court (Ex.D2) without any notice from the Court on the same day as the suit was filed as they were blind. d) There is no family arrangement proved on the record and there was no joint Hindu Family between the plaintiffs of that suit and the defendants thereof which had already disrupted in 1958-59. e) There could be no family arrangement and none has been shown between the plaintiffs of that suit and the defendants thereof after the partition of the family in 1958-59. f) The defendants of that suit, namely, Dharam Chand and Daulat Ram were blind on that day as admitted by defendant No.3 Sh. Kishan R.S.A. No. 1491 of 2010 (O&M) -12- making a statement on oath in Court as DW4 and the mutation No.850 decided on the basis of the said judgment and decree is also null and void. 7. Whether mutations (Ex.D15 and D16) have been entered contrary to the orders of the revenue officers made thereon and whether the mutations themselves create any title in favour of the defendants in respect of the property in dispute and further whether the plaintiffs who have all along been in continuous possession of the land in dispute were obliged to challenge the mutations and the wrong entries in the revenue record made on their basis until the time their possession and title was challenged by the defendants? 8. Whether the plaintiff/appellants who are owners in possession of the land in dispute are also entitled to the relief of permanent injunction as prayed for in the suit? 9. Whether any alleged family arrangement which is the basis of the judgment and decree (Ex.P28 and P29) could have been arrived at without involving the plaintiff/appellants who had been admittedly adopted and transplanted into the families of Dharam Chand and Daulat Ram respectively as far back as on 14.10.1964?” In support of the substantial questions of law, the learned senior counsel for the appellants contended that the learned Courts below were not justified in deciding issues No.1 to 5 jointly instead of separately. According to the learned senior counsel, it resulted in illegality, therefore, the judgment is to be declared as perverse. This contention on the face of it is mis-conceived. When the R.S.A. No. 1491 of 2010 (O&M) -13- issues are inter-connected, it is always open to the Court to decide the issues together. Merely because issues are decided together, the judgment cannot be said to be illegal or perverse, as contended. On the second substantial question of law, the learned senior counsel for the appellants contended, that the learned Courts below wrongly held the suit to be barred by limitation as the suit filed was within the limitation under Article 65 of the Limitation Act, 1963. Further that, the suit for possession on the basis of title, could not be barred by limitation in absence of successful plea of defendants, that they had perfected their title by way of adverse possession. In support of this contention, the learned senior counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court in Daya Singh and another Vs. Gurdev Singh (Dead) by L.Rs and others, 2010(1) RCR (Civil) 654, wherein a declaratory suit filed after 18 years of compromise, was held to be not barred by limitation. This contention of the learned senior counsel again is mis- conceived. A party by mis-description of the suit cannot bring the suit to be within limitation, as in absence of setting aside of the decree under which the title was passed to defendant/respondents, the plaintiff/appellants could not claim ownership to file a suit on the basis of title. To challenge the decree passed by the civil Court, the limitation is three years. Though, an attempt was made by the plaintiffs to plead that they had no knowledge of the decree, and had come to know about it recently, but by way of documentary and oral evidence it was proved that decree was well within the knowledge of the plaintiff/appellants, the suit, therefore, filed after 36 years of decree was rightly held to be time barred. R.S.A. No. 1491 of 2010 (O&M) -14- The judgment of the Hon'ble Supreme Court, relied upon by the learned senior counsel, has no application to the facts of the present case, as in the said case, the Hon'ble Supreme Court held, that the cause of action accrued to the plaintiffs, in the said suit when the compromise was infringed, but in the present case, the cause of action accrued to the appellants when the decree affecting their right was passed. No fault can be found with the findings recorded by the learned Courts below. The second substantial question of law raised is also answered against the appellants, and it is held that the limitation to challenge the decree passed by the civil Court was three years, from the date of passing of decree, or in the alternative from the date of knowledge. On the third substantial question of law, the learned senior counsel for the appellants contended, that by way of Ex. P1 and Ex. P2, it was proved that the plaintiffs were adopted sons of Dharmu @ Dharam Chand and Daulat Ram. This substantial question of law does not arise in this case, as the learned Courts below have not doubted, that the plaintiffs were the adopted sons of Dharmu @ Dharam Chand and Daulat Ram . On the fourth substantial question of law, the learned senior counsel for the appellants contended, that once it was proved, that there was separation of khewat between Tara Chand on the one hand and Dharmu @ Dharam Chand and Daulat Ram on the other, then after allotment of khewat during consolidation, the land measuring 247 kanals and 17 marlas became exclusive property owned by Dharmu @ Dharam Chand and Daulat Ram was their separate property, so family settlement could be arrived at. This contention again is mis-conceived, if it is taken that Dharmu R.S.A. No. 1491 of 2010 (O&M) -15- @ Dharam Chand and Daulat Ram had inherited property exclusively, after partition then they became absolute owners, then the suit filed by the plaintiff/appellants could not be sustained as in view of the disruption of the Joint Hindu Family, Dharmu @ Dharam Chand and Daulat Ram had absolute right to transfer the property. The plaintiffs cannot, therefore, challenge the transfer by claiming it to be ancestral Joint Hindu Family property. On the fifth substantial question of law, the learned senior counsel for the appellants contended, that in the year 1975, more particularly on the