RSA No. 273 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 273 of 2010 (O&M) Date of decision:- 13.10.2011 Karuna Shankar and others ....Appellants Vs. Shatrughan @ Ram Dhan and others ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL ****** Present:- Mr. Harkesh Manuja, Advocate, for the appellants. A.N. JINDAL, J (ORAL) This appeal is directed against the judgment dated 30.04.2009 passed by the Additional District Judge, Sonepat, partly accepting the appeal preferred by the plaintiffs-appellants (hereinafter referred as 'the plaintiffs') against the judgment and decree dated 15.09.2008 passed by the Civil Judge (Senior Division) Sonepat, dismissing the suit of the plaintiffs. The facts necessary for disposal of this appeal are that Karuna Shankar, Nawal Kishore and Vijay Shankar sons of Kanta Parshad-plaintiffs had filed a suit for declaration with a consequential relief of permanent injunction that Jugal Kshore, predecessor-in-interest of the plaintiffs as well as the defendants was the owner of the land comprised in Khewat No.656, Khata Nos. 866 and 867, measuring 32 Kanals 12 Marlas, as fully detailed in the heading of the plaint. Said Jugal Kishore died RSA No. 273 of 2010 (O&M) 2 more than 80 years back leaving behind three sons namely Lachhman Singh, Mubarik Singh and Badri Singh @ Badri Parshad. Lachhman Singh died intestate leaving behind no heir. As such, the land was inherited by his remaining two brothers namely Mubarik Singh and Badri Singh. Later on Mubarik Singh also died intestate leaving behind his widow Smt. Janki Kanwar and according to law of inheritance, his share in the land was inherited by Badri Singh @ Badri Parshad and as such, he became full owner of the land. Mubarik Singh or his widow never adopted Inder Singh as his son. The Civil Court had also refused to accept Inder Singh as an adopted son of Mubarik Singh. It was further averred that Badri Singh died leaving behind Kanta Parshad, Inder Singh, Sunder Singh, Bhagwati Parshad, Fateh Singh and Shatrughan, as his legal heirs and all the aforesaid legal heirs inherited the land in equal shares i.e. 1/6th share each. However, the revenue entries, where Inder Singh was shown as owner to the extent of 7/12th share, is incorrect and is not binding upon the plaintiffs. Inder Singh along with his brother Fateh Singh had filed a civil suit No. 532 of 1996 against other brothers and vendees, claiming himself to be the owner of 1/6th share of the land and in that suit, he never averred that he was ever adopted by Mubarik Singh or his widow Janki Kanwar. The plaintiffs and proforma defendant Nos. 19 to 22 are the legal heirs of Kanta Parshad, who has since died while defendant Nos. 1 to 5 are the legal heirs of Bhagwati Parshad. Defendant Nos. 6 to 14 are legal heirs of Fateh Singh and defendant Nos. 15 to 18 are legal heirs of Inder Singh. It was also averred that the plaintiffs and defendants being descendants of one lineal ascendant were RSA No. 273 of 2010 (O&M) 3 closely related to each other having 1/42 share each in the agricultural land as well as in the residential houses. In December, 1991, a family settlement was arrived at between the parties, according to which, the entire share of Inder Singh, Sunder Singh, Bhagwati Parshad, Fateh Singh and Shatrughan was given to heirs of Kanta Parshad i.e. to the plaintiffs and proforma defendant Nos. 19 to 22. Thus, the plaintiffs and proforma defendants became exclusive owners of the land, as fully detailed in para No.1 of the plaint as well as residential house and 'gher', detailed in para No.6 of the plaint, to the exclusion of other defendants. A 'parcha yadast' was executed on 21.06.1992 regarding oral family settlement and it was decided that the heirs of Kanta Parshad would pay Rs.81,425/- to each of the remaining brothers, but a sum of Rs.1,61,425/- was paid to Fateh Singh, one of the brothers, as he had incurred some expenditure on the improvement of the 'gher' and construction of boundary wall. It was further averred that as per family settlement, necessary payments were made to Shatrughan Sharma, Sunder Singh, Bhagwati Parshad and Fateh Singh, who had executed receipts in token of having received the amount. However, a sum of Rs.81,425/- was also paid to Inder Singh as per family settlement, but he did not issue any receipt and went on putting off the plaintiffs as well as proforma defendant Nos. 19 to 22. However, they have become owners in possession of the said property by way of family settlement and having complied with the terms of the settlement. The suit was contested by defendant Nos. 1 to 5, whereas, defendant Nos. 19 to 22 filed written statement RSA No. 273 of 2010 (O&M) 4 admitting the claim of the plaintiffs. Defendant Nos. 6 to 14 were served, but none had turned up on their behalf. As such, they were proceeded against ex-parte. Defendant Nos. 15 to 18 appeared and had contested the suit by filing separate written statement. The contesting defendants denied having executed any family settlement and having received any payment in terms of the said agreement. The trial Court dismissed the suit of the plaintiffs in toto. However, the Additional District Judge, Sonepat, vide judgment dated 30.04.2009, partly accepted the appeal while holding that all the six sons of Badri Singh, including Inder Singh, the predecessor-in-interest of defendant Nos.15 to 18, had 1/6th share each in the disputed properties and the entries in the revenue record showing Inder Singh as owner of 7/12 share are wrong, illegal and not binding upon the plaintiffs and other heirs of Badri Singh. The plaintiffs, being dissatisfied, have again preferred the appeal. Primarily, the reliance placed by the plaintiffs is upon the family settlement, which took place between the parties in December 1991 and it was reduced into writing on 21.06.1992. It has been urged that the necessary terms of the settlement were complied with by the plaintiffs by making payments to Inder Singh and other shareholders. In this regard, it is observed that the family settlement was never acted upon and there is no such evidence that it was a document recognizing the pre-existing rights and did not require registration. Further, it would be significant to mention here that previous to the filing of the present suit, a civil suit was filed by RSA No. 273 of 2010 (O&M) 5 Daya Shankar, brother of the plaintiffs, for himself and on their behalf being their general power of attorney in 1999, on the basis of some family settlement, but the same was withdrawn on 12.05.2000 without seeking permission to file a fresh suit on the same cause of action. Therefore, the present suit having been filed beyond limitation and without seeking permission, cannot be said to be maintainable. The plaintiffs also cannot get any benefit of the provisions of Section 14 of the Limitation Act. The plaintiffs have not specifically mentioned as to when Inder Singh refused to own the alleged family settlement dated 21.06.1992. In any case, the present suit having been filed after 8 years of the alleged family settlement, i.e. In 2000, when the limitation for making the payment was two months from 21.06.1992, thus, the same is certainly time barred. Even otherwise, the said family settlement determining the terms and conditions for conferring with certainly requires registration. In any case, when once the predecessor-in-interest of the plaintiffs had withdrawn the suit without seeking permission, no fresh suit could be filed. Resultantly, finding no merit in the appeal, the same is hereby dismissed in limine. (A.N.JINDAL) October 13, 2011 JUDGE ajp