CM No.10106-C of 2008 ::1:: and RSA No.3379 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.10106-C of 2008 and RSA No.3379 of 2008 Date of decision: 16.03.2010 Bhupinder Singh and others .. Appellants Versus Gurnam Singh and others .. Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ?Yes b). To be referred to the Reporters or not ? Yes c). Whether the judgment should be reported in the Digest ? Yes Present:- Mr.J.S.Brar, Advocate for the appellants Mr.Surjit Singh, Senior Advocate with Mr.Jagdev Singh, Advocate for the respondents No.1 to 9. . . . AJAY TEWARI, J. (ORAL) CM No.10106-C of 2008 For the reasons mentioned in the Civil Miscellaneous Application, same stands allowed and the persons mentioned in para 3 of the Application, are impleaded as Legal Representatives of appellant- Amrik Singh, who is stated to have been died, subject to all just exceptions. Registry is directed to make the necessary corrections in the Memo of Parites. RSA No.3379 of 2008 This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellants for declaration and for possession of the land in dispute. The case set up by CM No.10106-C of 2008 ::2:: and RSA No.3379 of 2008 the appellants was that they are successors-in-interest of Lal Singh and Arjan Singh who were sister's sons (Bhanjas) of Kahla Singh, who was admittedly the owner of the property in dispute. Since Kahla Singh was unmarried and having no children he had created a gift deed of the land in dispute in favour of the aforesaid Lal Singh and Arjan Singh. It is on the basis of that gift deed that the present suit was filed. Alternatively, they pleaded that Lal Singh and Arjan Singh being the sons of the sister of Kahla Singh, they would in any case be entitled to inherit the property. The respondents took the plea that the gift deed made by Kahla Singh was challenged by the reversioners and a decree was passed whereby the gift was held to be invalid against the interest of the reversioners. That decree was upheld in appeal and therefore became final between the parties. After the gift deed (under which possession was handed over to them) came to an end with the death of Kahla Singh, it is stated that they have been dispossessed after two and a half years. It was further pleaded that Kahla Singh was actually never in physical possession of the land which was under tenancy and under mortgage. The respondents after death of Kahla Singh in the year 1947 entered possession after settling with the tenants and the mortgagees and have continued to be in possession since then. The Courts below held that the claim of the appellants on the basis of gift deed was barred by res judicata. Further, their claim on the basis of inheritance was also devoid of merit since when Kahla Singh died the Hindu Succession Act had not come into force and under the Customary Law then in operation, sisters (as well as their children) were excluded from inheritance. The Courts below also found that the respondents had been in possession at least since 1953 and further that the appellants had never been in possession of the land in dispute. Consequently, the CM No.10106-C of 2008 ::3:: and RSA No.3379 of 2008 suit of the appellants was dismissed. Following questions have been proposed:- (i) Whether the defendant Gurnam Singh could gain title without filing a statutory suit for possession within 3 years of death of alienor, mandatory under Article 4 (a) Schedule to Limitation (Custom) Act. (ii) Whether possession of land by payment of mortgage after the plaintiff has lost the statutory period of 3 years for filing a suit for possession for becoming owner, would not amount to only purchase of mortgagee rights ? (iii) Whether the plaintiff's oral evidence regarding his possession of the land in dispute at the time of death of alienor in 1947 can be relied at, when it is contrary to his own documentary evidence that he had paid off the usufructuary mortgage after the period of limitation had expired for a suit for possession by which he could gain ownership ? (iv) Whether the judgment where evidence is misread and view in the judgment formed adverse to the facts on record would not be perverse requiring interference in II appeal ? (v) Whether finding can be given merely on an arguments addressed, if not founded on evidence on record. Question Nos.(i), (ii) and (iii) are overlapping questions. As regards question No.1, in the face of the finding that the respondents had taken possession, any inaction in not filing a suit for possession would not negate their claims. Question Nos.(iv) and (v) are CM No.10106-C of 2008 ::4:: and RSA No.3379 of 2008 general questions, which do not arise in view of the answers given to questions No.(i), (ii) and (iii). Apart from this, learned counsel also argued that in law, the decree against the gift deed being inchaote (since no second suit for possession was filed) could not be res judicata. In my opinion, this is not the correct exposition of law. Section 11 of CPC mandates that any issue which has been finally addressed by the Court on merit cannot be allowed to be re-agitated in a subsequent proceeding. Once the gift deed in favour of Lal Singh and Arjan Singh has been held to be inoperative and not binding on the rights of the reversioners, the reliance on the gift deed in a subsequent proceeding would be hit by the doctrine of res judicata. In these circumstances, holding all the questions proposed against the appellant, this appeal as well as the Civil Miscellaneous Application, if any, are dismissed. No costs. March 16, 2010 (AJAY TEWARI) Sukhpreet JUDGE