Dalip Singh vs Kali Ram

S.D. Bajaj, J.—The dispute is between real brothers. Dalip Singh Defendant-Appellant, who is admittedly given to excessive drinking, sold to Kali Ram Plaintiff-Respondent his 19 Kanals 12 Marias of agricultural land comprised in Khasra Nos. 57/23(3-12), 57/24(8-0) and 57/17(8-0), vide two separate registered sale-deeds dated 14-10-1960 and 28-4-1964(sic) respectively. Remaining 11 Kanals 12 Marias of holding comprised in Khasra Nos. 57/18(7-12) and 57/23 min (4-0) was also sold by Dalip Singh aforesaid to another brother Prithi Singh, vide registered sale deed dated 14-10-1960. The two brothers, who had purchased the land, filed Civil Suit No. 496 on 24-9-1964 seeking declaration of their title to the purchased land and their entitlement to get the land mutated in their own names. Dalip Singh did not contest the suit. He did not appear there in spite of service and was, therefore, ordered to be proceeded against ex parte.

The vendor in Dalip Singh had, however, after the date of the sale aforesaid, created a mortgage of his land covered by these three sale-deeds in favour of Hira and Darya, vide registered mortgage deed dated 19-12-1963. The two mortgagees resisted the claim of Kali Ram and Prithi Singh, vendees, Shri O. P. Dharwal, learned Sub Judge 3rd Class, Hissar, dismissed the suit on the grounds that a part of the sale consideration still remained to be paid and the possession of the land sold was still with the vendor and, therefore, the vendees had neither become full owners of the land sold to them nor could get the same mutated in their favour. The lands were thereafter got redeemed from the two mortgagees aforesaid.

On 17-2-1975 Kali Ram again filed another Civil Suit No. 636 of 1975 in the Court of Shri B R Gupta, learned Sub Judge Ist Class, Hissar, for permanent injunction restraining the vendor Dalip Singh Defendant Appellant from interfering with his ownership and possession on the disputed lands. The claim was allegedly admitted by Dalip Singh through Shri Gurmesh Bishnoi, Advocate, and accordingly a consent decree was passed by the learned Sub Judge in this case on 20-2-1975. Extravagant and ever needy Dalip Singh filed Civil Suit No. 26 C on 11-9-1975 challenging the consent decree dated 20-2-1975, vide judgment dated 6-12-1976, the learned Sub Judge Ist Class, Hissar, basing his judgment on mere conjectures, which are not legally supportable, decreed the suit. Appeal filed by Kali Ram, bearing No. 2-CA instituted on 1-1 1977, was accepted by the learned Senior Sub Judge, Hissar on 10-8-1977, who reversed the judgment and decree dated 6-12-1976 and dismissed the suit filed by Dalip Singh Consent decree dated 20-2-1975 was thus restored. Present R S. A. No. 1828 of 1977 is directed against the decision of the learned First Appellate Court dated 10-8-1977.

It has been urged by the learned Counsel for Defendant Appellant that the contest in Civil Suit No. 496 of 1964 decided on 13-10-1965 clearly suggests that there was no love between the brother, and Kali Ram Plaintiff-Respondent as also other brother of Dalip Singh named Prithi Singh were both trying to deprive Dalip Singh Defendant-Appellant of his entire holding because of his extravagant babits of excessive drinking. There was, therefore, according to the learned Counsel, no question of Dalip Singh Defendant Appellant giving his consent to the passing of the decree dated 20-2 1975. The argument is wholly fallacious and entirely bereft of merit. In the first place, as has already been observed with reference to the record of the learned trial Court in the file of Civil Suit 496 decided on 13-10-1965, Dalip Singh Defendant-Appellant did not appear therein in spite of due service and was ordered to be proceeded against ex parte The suit was, therefore, not contested by Dalip Singh Defendant Appellant at all The two subsequent mortgagees from him, after the dates of alleged sales in favour of Plaintiff-Respondent who contested the suit, were duly satisfied and the agricultural land in suit was got redeemed from both of them before Dalip Singh Defendant-Appellant expressed his consent in the consent-decree passed in Civil Suit No 636 of 1975 on 20-2-1975 through Shri Gurmesh Bishnoi, Advocate, examined as D. W. 4 in Civil Suit No. 26 C filed on 11-9-1975 and decided on 6-12-1976.

5 Secondly, D W. 4 Shri Gurmesh Bishnoi, Advocate, counsel engaged by Defendant-Appellant categorically asserted before the learned trial Court on 6-12-1976:-

I was the counsel in Kali Ram v. Dalip Singh for the Defendant present in Court. I had filed the written statement which is signed by me in the original file. The copy of which is Ex. D-10. Whatever directions and instructions were given by Dalip Singh, present in Court, were incorporated by me in the written statement and no fraud was played in getting the decision of the Court.XX Xn..........

I was engaged by the Defendant Shri Dalip Singh on 19-2-1975 and I had filed the written statement on the same day. It is incorrect that the written statement was given to me in blank much earlier or that the written statement paper was lying fold There was no fold in the written statement when I had filed the same. I did not know Dalip Singh personally and I knew him only as a client I fully remember that Dalip Singh remained present with me in the Court-room during the proceedings It is incorrect that some fraud was played as against Dalip Singh.

Similarly Shri Yash Pal Chand Jain, Handwriting Expert, D. W. 1, also asserted, on the basis of comparison of the thumb-impressions of Dalip Singh Defendant-Appellant taken in Court with his thumb-impression of Vakalatnama and written statement filed in Civil Suit No. 26-C of 1975, that they tallied with each other and were of the one and the same person On the basis of evidence aforesaid, there was absolutely no tangible basis for the learned trial Court to hold on 6-12-1976 that the consent decree dated 20-2-1975 was vitiated by fraud; more so when fraud had neither been pleaded nor proved. It has been held in Union of India (UOI) Vs. Chaturbhai M. Patel and Co., , that fraud like any other charge of a criminal offence, whether made in civil or ''criminal proceedings, must be established beyond reasonable doubt. However, suspicious may be the circumstances, however, strange the coincidences and how-ever grave the doubts, suspicion alone can never take the place of proof. Learned Senior Sub Judge, Hissar, exercising enhanced appellate powers, was thus wholly justified in reversing the finding of the learned trial Court. Finding recorded by the learned Court of First Appeal in this behalf is, therefore, affirmed.

On point of possession over the agricultural land in suit, learned trial Court had wrongly relied upon the oral assertions of Darya Singh mortgagee that he handed over possession to Dalip Singh Defendant-Appellant on redemption of the mortgage and erred in ignoring the entires in Jamabandi and Khasra Girdawari of Plaintiff-Respondent being in possession of it Learned Senior Sub Judge, while sitting as Appellate Court, rightly corrected the error in the judgment of the learned trial Court, vide his first appellate Court judgment of 10-8-197(sic). Plaintiff-Respondent was thus rightly held to be in possession of the land, in dispute, from 1960 onwards Finding recorded by the learned Court of First Appeal in this regard is also affirmed.

In Rajani Kumar Mitra and Others Vs. Ajmaddin Bhuiya, it was observed that the bar of res judicata is one which does not affect the jurisdiction of the Court but is a plea in bar, which a party is at liberty to wavie. In this view of the circumstances, Dalip Singh Defendant-Appellant is to be regarded to have waived this plea of res judicata while suffering a consent decree on 20-2-1975.

In Deity Pattabhiramaswamy v. S Hanymayya and others A. I. R. 1959 S. C. 57, it was observed;

The provisions of S. 100 are clear and unambiguous There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. (The practice of some judges of the High Court disposing second appeals as if they were first appeals deprecated.)

All submissions made by the learned Counsel for Defendant-Appellant to assail the finding of fact regarding his client having not expressed his free consent to the passing of the consent decree dated 20-2-1975 are thus rendered futile. There is obviously no merit in the R. S. A. which is dismissed with costs. Counsel fee assessed at Rs. 500/- (Rupees five hundred only).