Ajmer Singh vs Chand Singh (Deceased) represented by his LRs

N.K. Kapoor, J.—This order shall dispose of Regular Second Appeal Nos. 598 and 599 of 1990 as the question of law and fact which arise in both these appeals is the same.

Chand Singh and others filed suit for possession on the basis of judgment and decree dated 6.1.1926 passed by the appellate Court in Civil Appeal Nos. 44 and 50 of 1925 in Civil Suit No. 11 of 1923 and decree in Civil Suit No. 106 of 1925 decided by the Senior Sub Judge, Ferozepur, on 3.4.1922. As per averments made in the plaint, Tara Singh sold the land measuring 410 Kanals 18 Marias on 28.3.1916 for on ostensible price of Rs. 20,500/-. Tara Singh sold another 100 Kanals of land on 9.4.1919. Tara Singh was jat agriculturist and governed by customary law of Punjab under which the last male proprietor could not alienate his ancestral land without consideration and legal necessity. Tara Singh was issueless. The sales were challenged in the aforementioned suit which was decreed by the Court declaring the sales to be null and void with the further stipulation that the plaintiffs or their successors shall not be entitled to get possession when succession opens except on payment of Rs. 15507/-. Tara Singh died on 15.2.1983 at Rewa (Madhya Pradesh). Since the decree enures for the benefit of near heirs of Tara Singh on his death, plaintiffs claimed possession of the land in accordance with the terms of the decree. It is further the case of the plaintiffs that the vendees sold their shares to the defendants who have been impleaded for the necessary relief. With these broad averments, plaintiffs sought possession on the basis of decree mentioned above.

Contesting defendants put in appearance and filed written statement. Defendants Nos. 1, 2 and 3 filed joint written statement and defendants Nos. 4 to 36 filed separate written statement. Proforma defendants admitted the claim of the plaintiffs, Defendants Nos. 1 to 3 by way of preliminary objections asserted that they have purchased the land on 5.7.1956 vide registered sale deed and, in fact, bona fide purchaser for value and so plaintiffs are not entitled to possession of the suit land. Secondly that they have effected improvement upon the land by investing about Rs. 10,000/- and have also installed a tubewell. Otherwise also, the possession of the answering defendants is open, hostile, without interruption; that the suit of the plaintiffs is time barred as Tara Singh has died much before 15.2.1983. On merits also, the averments made in the plaint were denied and it was reasserted that Tara Singh s/o Partap Singh died more than 8 years back. He became Sadhu in his young age and renounced the world and died before the natural death civilly. The entry made in the record about his death at Rewa is wrong and that the document is fabricated. Similarly, defendants Nos. 4 to 36 also took almost identical preliminary objections that they have effected improvements upon the land by installing tubewell and that the certificate produced to prove the death of Tara Singh is a fabricated document. In addition thereto, it has been stated that no entry was made about the alleged conditional decree dated 20.12.24 in the revenue record. It was also averred that both the suits are hit by the principle of Champarty and these deserve to be dismissed. On merits too, it was stated that the plaintiffs were able to manage false entries recorded in the Gandhi Memorial Hospital, Rewa. According to the defendants, in fact, entries in various documents have been fabricated so as to bring the suit within period of limitation.

On the basis of the pleadings, following issues were framed:-

Whether the suit is within limitation ? OPP.

When did Tara Singh die ? OPP.

Whether the death certificate produced by the plaintiff related to Tara Singh deceased ? OPP.

Whether cause of action arose to the plaintiff on 5.2.83 ? OPP.

What is the effect of purchase of land by Sajjan, Bhajan Singh and Kaka Singh from Dara Singh and others ? OPP.

Whether the plaintiffs are estopped from filing the suit by his own conduct ? OPP.

Whether the defendants Nos. 14 to 36 have made improvements on the land? If so to what extend ? OPD.

Whether defendants No. 4 to 36 have acquired ownership right by adverse possession for more than 12 years ? OPD.

Whether the defendants No. 4 to 36 are entitled to recover any compensation for the improvements. If so, to what amount ? OPD.

What is the effect on non-entry of conditional decree dated 20.12.24 in the revenue papers ? OPD.

Whether the suit is hit by the principle of Champarty as alleged in para No. 5 of preliminary objection ?

Whether the death certificate produced by the plaintiff is forged document as alleged in para No. 9 ? OPD.

Whether the land sold by Tara Singh was ancestral of Tara Singh the plaintiffs of the previous suit ? OPD.

If it is proved that Tara Sigh predeceased a wife and whether the suit by Kartar Singh and Chand Singh are maintainable ? OPP.

Whether the plaintiffs have no locus standi to file this suit ? OPD.

Whether Tara Singh joined any Sadh ? If so when ? OPD.

Whether the plaintiffs are related to deceased Tara Singh ? OPD.

What is result of Tara Singh''s joining Sadh Bhek ? OPD.

In case of decree having proved, then what is the share of each plaintiff in the suit land and what amount the plaintiffs are required to deposit in court for payment to defendants? OPP.

What is the share of each defendant to the sum and what is found to be deposited in Court ? OPD.

Whether the land in suit was allotted in consolidation proceedings in lieu of the land originally sold by Tara Singh ? OPP.

Whether Ranjit Singh s/o Sajjan Singh and Amarjit Singh s/o Bhagwan Singh are necessary parties to this suit being vendees ? OPP.

Whether defendants No. 1 to 3 are bona fide purchasers of the land for consideration and without notice to the plaintiffs? OPD.

Whether Pala Singh-plaintiff died before filing of this suit ? OPP.

Whether the plaintiffs are entitled to the possession on the basis of decree dated 3.4.1922 and 8.1.1926 ? OPP.

Relief.

The trial Court decided issues No. 1 to 4 and 12 in favour of the plaintiffs and Kartar Singh and Pala Singh, defendants No. 39 and 40 respectively. Issues No. 5 to 11, 13, 14, 21 to 24 were not pressed during arguments before the trial Court and the same were decided against the defendants. Accordingly, the trial Court decreed the suit in favour of the plaintiffs holding that Kartar Singh and Pala Singh are entitled to 2/3rd share of the land mentioned in para A and B of the heading of the plain and 1052/3143 share of land mentioned in Para C of the plaint in suit filed by Kartar Singh and Pala Singh. Chand Singh plaintiff is entitled to l/3rd share mentioned in para A and B of the plaint. It was also held that the defendants are entitled to receive the amount of Rs. 15,507/- and another sum of Rs. 2,792/- which already stands deposited in the Court, as per their respective shares in the land in dispute. Parties were directed to bear their own costs.

Before the lower appellate Court, the matter was once again examined in all its detail. Primarily, the challenge was made to the factum of death of Tara Singh on 15.2.1983 and the improvements effected by the defendant-appellants upon the land in their occupation. No other point was argued before the lower appellate Court. The lower appellate Court on reappraisal of oral as well as documentary evidence affirmed the finding of the trial Court with regard to the date of death of Tara Sigh. As regards plea of improvement, the lower appellate court in para No. 15 of the judgment returned a finding against the defendants on the ground that there is no documentary evidence on record as to when and to what extent the defendants had made improvements upon the land. As regards the minor improvements in the nature of levelling of land, it was observed that the same does not entitle the defendants to get compensation as during all these yeas they had reaped good harvest on account of improvements. The lower appellate Court further held that the defendants if they so choose can remove the tubewell and other installations at their own risk at the time of delivery of possession or prior to it. Thus, the appeal too was dismissed vide judgment and decree dated 20,1.1990.

The sole contention of the learned counsel for the appellants is that both the Courts below had erred in Saw in evaluating the evidence led by the plaintiffs to prove the death of Tara Singh on 15.2.1983. According to the counsel, documentary evidence on record is not only contradictory but, prima facie, otherwise also based on wholly unreliable material. Elaborating, the counsel urged that the story set up by the plaintiffs that Tara Singh was admitted in Government Hospital at Rewa is totally a concocted story. Tara Singh left the worldly affair and became a saint whose whereabouts were not known for a number of years and all that it was known was that he has living somewhere in Bihar. Thus, the story put up by the plaintiffs that he suffered a heart ailment and was admitted to a government hospital at Rewa was fabricated. DW-6 Vimal Prashad Panday expressed his inability to produce the original document to support the death certificate Exhibit DW-6/A as the same was not available as per record. Thus, in the absence of the original document, the Courts below erred in law in relying upon the death certificate Exhibit DW-6/A. The counsel further argued that even if it be taken that the original documents have been misplaced subsequent to the issuance of death certificate Exhibit DW-6/A, the logical inference in the context of the dispute is that the plaintiffs in collusion with the staff members of the hospital have got removed the material documents so that the death certificate be not proved as untrue or a fake document. In any case, the contesting defendants had nothing to gain but lose on account of non-availability of the original record of the hospital.

In reply the learned counsel for the respondents urged that the Courts below had carefully examined the documentary as well as oral evidence led by the parties and came to the conclusion that Tara Singh died on 152.1983 and this being finding of fact cannot be challenged in second appeal. Even otherwise, as per deposition of Sh. Vimal Parshad Panday, DW-6, death certificate Exhibit DW6/A has been duly proved. The witness has deposed that it bears the signatures of Dr. K. Kaushal as well as his signatures. The witness has further stated that it is on the basis of death report of a deceased from the ward that a death certificate is prepared. In view of this document on record, the Courts below rightly discarded the conjectural submissions made by the defendants with a view to discredit DW-6 or cast a doubt as to the authenticity of document Exhibit DW-6/A. Similarly, the Courts below found no ground to award compensation on account of alleged improvement on the ground that there was no documentary evidence in support of the same.

I have heard learned counsel for the parties and perused the statements of the witnesses as well as various documents referred to by the respective counsel in support of their submissions. The dispute between the parties revolves around the date of death of Tara Singh and the same has material bearing upon the fate of the case. Statements of sarv Sh. Suresh Lal, DW-10, Ajit Singh, DW-4, Dr. S.K. Khanejo, DW-12, Bimla Prasad Pandey, DW-6, and Angrej Singh defendant throw considerable light on this aspect of the matter. DW-10 Suresh Lal, witness of defendants No. 4 to 36, has proved that Tara Singh died in Gandhi Memorial Hospital Rewa on 15.2.1983. DW4 Ajit Singh who obtained the dead body of Tara Singh from the hospital has also supported the case of the plaintiffs. Document Exhibit DW12/A bears signatures of Wazir Singh. As per this documents, one Sh. Sant Singh s/o Sh. Partap Singh, aged 92 years, was admitted in the hospital on 10.2.1983 on account of myocardiac infraction who died on 15.2.1983. This document is also proved by the statement of Dr. S.K. Kanejo who produced the original admission register and further deposed that there is no difference of ink in the columns of the name to Tara Singh, Not only this, the witnesses examined by defendants subsequent to the statement of Sh. Suresh Gor, DW10, admitted the factum of death of Tara Singh on 15.2.1983. Angrej Singh defendant vide his application Exhibit DX stated that his grand-father died on 15.2.1983 and so death certificate be issued to him. In addition thereto, statement of DW6 proving the issuance of certificate Exhibit DW6/A lends credence to the version of the plaintiffs that Tara Singh died on 15.2.1983 in Government Hospital at Rewa. Document Exhibit DW6/A - death certificate is purported to have been prepared on 16.3.1983 which bears the signatures of Dr. Kaushal. This document has been duly proved by DW6 Bimla Parsad Pandey. Till 16.3.1983 no controversy as to the date of death of Tara Singh had been raised. It is only when suit was filed in 1986 that plea had been set up that Tara Singh, in fact, left the worldly affairs long back and so died civilly. Even otherwise, it was stated that the death certificate is a fabricated document. As observed earlier, there was no controversy with regard to the date of death when Exhibit DW6/A was issued and this document alone is sufficient to prove the factum of death of Tara Singh. In the present case, document Exhibit DW6/B, DW6/C, DW6/D and DW6/E prepared by the functionaries of the Govt. Hospital, Rawa, cannot be discarded merely on the ground that subsequently the originals have some how been misplaced. The plea raised by the appellants is of desperation. It is indeed difficult to accept that various functionaries of the Govt. Hospital at Rewa would collude with the plaintiffs and fabricate such a document/documents.

The defendants in their written statement had set up a positive plea that Tara Singh left the worldly affairs and so was civilly dead. To substantiate such a plea no reliable evidence had been adduced and thus the Courts below rightly came to the conclusion that the same is not proved.

It is admitted case of the parties that Tara Singh has died. According to the plaintiff, he died on 15.2.1983 at Rewa (Madhya Pradesh). The defendants, however, have not made any positive assertion as to the date of death of Tara Singh. This itself belies their stand. Their own witness Angrej Singh vide his application Exhibit DX has clearly mentioned therein that his grand-father died on 15.2.1983.

The scope of this Court in second appeal is rather limited in view of the provisions of Section 100 of the Code of Civil Procedure. Present is not a case that the first appellate Court failed to consider the material evidence on record. It is only when the last Court on fact records a finding based on no evidence or on misreading of evidence or without considering the entire evidence on record that such a finding can be interfered with by the High Court. In the present case, finding of the Courts below is based upon evidence led by the respective parties. The Court has given reasons in support of its conclusion as to why particular documentary evidence has been preferred. It is well settled that in second appeal the jurisdiction of the High Court is confined to question of law. Once the appellate Court has answered the issue on the basis of oral and documentary evidence, it is not open to the High Court to attempt to reappreciate that evidence. It has to decide the matter according to law. The apex Court in case reported as Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, , observed as under:-

" ... It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important that may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."

To the similar effect is the observation of the apex Court in case reported as Diety Pattabhiramaswamy v. S. Hanymayya AIR 1959 S.C. 57. Recently, in a decision in case reported as Bholaram Vs. Ameerchand, , it has been held in the context of unamended section 100 of the CPC that the finding of fact cannot be subject matter of appeal even if the error of finding is grossly inexcusable. Thus finding no merit in the submission made by the learned counsel for the appellant, I find no ground to reverse the decision of the Courts below that the suit filed by the plaintiffs is within limitation.

As regards the improvement effected upon the land, the same too does not call for any interference. Both the Courts have considered the matter in the light of evidence adduced by the parties. Resultantly, finding no merit in the appeals, the same are dismissed. The parties, however, will bear their own costs.

During the pendency of the appeal, Gurdeep Singh s/o Joginder Singh, respondent No. 9, filed an application placing on record the compromise dated 9.3.1994 praying that the appeal be decided in terms of compromise qua the applicant and respondents sarv Sh. Dial Singh and legal representatives of Chand Singh i.e. Major Singh, Nachhatar Singh and Jasbir Singh (Minor) sons of Chand Singh. Vide order dated July 22, 1994, it was directed that the compromise be placed on the file and same would be considered along with the main case at the time of final hearing. Neither the counsel nor the parties have come present in support of compromise placed on record. Sh. Sanjay Majithia, Advocate, counsel for the contesting defendants stated that he had no instructions in this regard nor this compromise was placed on record under his signatures. Similarly, Mr. K.S. Brar, Advocate, has no instructions. Since neither the parties to the compromise nor the counsel through whom the compromise was filed has come forward in support of the alleged compromise, the same cannot be given effect to and is ignored as not properly proved.