Amrit Lal and Others vs Joginder Singh and Others

S.S. Sudhalkar, J.—Respondent No. 1 had filed civil suit No. 27 of 9.2.1973 in the Court of learned Sub Judge I Class, Moga for specific performance of contract of sale dated 4.9.1961 of agricultural land bearing Khasra No. 54/20/2 measuring 36 kanals 15 marlas against the present appellants and respondents No. 1 and 3. The contract of sale was made by the predecessor-in-interest of defendant named Babu Ram. The civil suit was dismissed by the trial court. Respondent No. 1 filed an appeal. In the appeal, the original defendants were allowed to amend the written statement and the original plaintiffs were allowed to lead additional evidence and the decree passed by the trial court was set aside and the case was remitted to the trial court. Even after the remand, the decision of the trial court went against the present respondent No. 1 i.e. the plaintiff. He then filed civil appeal No. 56 ofl978 in the court of learned District Judge, Faridkot. The said appeal was allowed by the learned District Judge, Faridkot and the suit for specific performance was decreed.

Being aggrieved by the said judgment of the lower appellant Court, the present appellants have come in this second appeal before this Court.

I have heard Shri Anil Khetarpal, Advocate for the appellants and Shri S.M. Arora, Advocate, for the respondents.

The decree for specific performance is challenged by learned counsel for the appellants on two grounds viz:

"(i) that the original agreement to sell is not produced in the suit and only certified copy produced in some other suit had been produced and, therefore, the said document cannot be made the basis for passing a decree; and

(ii) that the suit property is the joint Hindu family property and, therefore, Babu Ram had no right to sell the property and hence he had no right to execute the agreement to sell in absence of any family necessity."

Regarding the first point, Shri Khetarpal argued that the secondary evidence has been led without permission and, therefore, the document which was the basis of the suit was not properly proved and, therefore, the suit was rightly dismissed. He has relied on the judgment in case Parsa Singh v. Smt. Parkash Kaur and Ors. (1976)78 P.L.R. 21. It has been held by the learned Single judge of this Court that registered will is not a public document and does not become public document after its registration. It is also held that under Clause (e) of Section 74 of the Indian Evidence Act, secondary evidence can be given of the contents of a document, if the original is a public document. This is a well established principle and if this only had been the case, I would have certainly agreed with the submission of learned counsel for the appellants. However, learned counsel for the respondents has argued that this point has been conceded by not pressing the same, in the lower appellate Court. He has drawn my attention to the judgment of the lower appellate Court. In paragraph 3 of the judgment, the issues are quotes Issue No. 1 is as below:

"Whether Babu Ram had entered into in an agreement for sale of the suit land to the plaintiff as alleged ? If so, on what terms ?"

In paragraph 7 of the judgment, the lower appellate Judge has stated that the findings of the trial court on the aforesaid issue was not assailed before him by the learned counsel appearing for either side and hence he had affirmed the findings. Even in the memo of this second appeal, it is not stated that this point was not conceded in the lower appellate Court or that the observations in paragraph 7 of the lower appellate Court are not correct.

When this is the position, it will not be proper or legal now to open this point which has been considered during the hearing of the first appeal.

The second point argued before me also does not help the findings. There is a finding of fact by the lower appellate court that the land in question was not joint Hindu family, property of the defendants. He has arrived at the above conclusion after considering the evidence such as Jamabandi which showed that Babu RamVas not an occupancy tenant and thereafter became a full proprietor. The learned District Judge relied on an unreported judgment of this Court and observed that a member of an undivided Hindu family does not acquire any right in the occupancy tenancy by the mere incident of his birth and that succession to the same is governed by Section 59 of the Punjab Tenancy Act and the occupancy rights delved on male lineal descendants and not by rule of succession. The lower appellate Court has also cited the case of Hem Raj v. Sona Singh, 1978 Punjab Law Journal 143. The learned single Judge of this Court has held in the case that the occupancy tenant becomes full owner of the land for the first time from the date of enforcement of the Act and the land becomes his self-acquired proper and that it cannot be treated as ancestral in his hands. It was also held that the plea that since occupancy rights were inherited by father of plaintiff from his father, therefore, land was ancestral arid a coparcenary property and that this constituted a joint Hindu family property, was not tenable. It is not shown why this principle laid down by learned Single Judge is not applicable to the facts of the present case. On the contrary after the findings of facts arrived at by learned District Judge on this point, it is for the appellants now to show that the facts arrived at did not have legal support. Therefore, the second point argued before, me also does not help the appellants.

No other point was argued before me.

Before parting with this judgment, I would also decide C.M. 2968-C of 1991 which has to be decided alongwith this appeal. It is filed by the respondents stating that respondent No. 1 Amrit Lal had died during the pendency of this appeal and that his legal representatives were not brought on record, and therefore, this appeal stands abated. This civil miscellaneous deserves to be dismissed in view of the fact that he was not the sole appellant and that even if his right is, for the sake of arguments, presumed to have been abated then also the surviving appellants have a right to proceed with the appeal. The right to appeal continues to the surviving appellants and even if the right of the deceased-appellant is held to have been abated then also it would not affect the rights of the surviving appellants.

In the light of the observations made above, both the appeal'' and the CM. 2968-C of 1991 have no merit, and the same are hereby dismissed with no order as to costs.