Jugti Ram and Others vs Raj Dev and Others

G.C. Garg, J.—This judgment will dispose of Regular Second Appeal Nos. 1131 and 1132 of 1979 as these appeals arise out of a common judgment ; involve the same question of law and fact and are between the same parties.

In order to understand the controversy between the parties, it is necessary to notice the following pedigree table : -

Dhan Singh ------------------------------------------------------------------- Rajdey Mariya Chandrawali Femo (doughter) (doughter) (doughter) (doughter) ------------------------------------------------------------------- Jugti Balraj Balbir Om Prakash Satbir (Son) (Son) (Son) (Son) (Son) -------------------------------------------------------------------

The pedigree table shows that Dhan Singh father of appellant-plaintiffs'' mother had four daughters namely, Rajdey, Mariya, Chandrawali and Femo, all of whom were married. Jugti, Balraj, Balbir, Om Parkash and Satbir are sons of Femo daughter of Dhan

Succinctly stated the facts of this case are that during the life of Dhan Singh, his daughters Rajdey. Chandrawali and Mariya filed a suit against him being suit No. 255 of 1975 and got a collusive decree in their favour to the effect that they were the owners of 3/4th share of land measuring 141 Kanals 12 Marias and 12 Kanals 8 Marlas. The said suit was decreed by the trial Court as Dhan Singh admitted the claim in the written statement and also made a statement in Court to that effect. After passing of this decree in , favour of three of his daughters, Dhan Singh made a Will in favour of five sons of his fourth daughter Femo on December 8, 1975 in respect of his entire property as, admittedly, Femo alongwith her sons, even after her marriage, was staying with Dhan Singn and the sons of Femo were in possession of the entire agricultural land measuring 141 Kanals 12 Marias and 12 Kanals 8 Marias irrespective of the fact that by a collusive decree sufferred by Dhan Singh, the latter''s three daughters Rajdey etc. were declared to be the owners of 3/4th share of the aforesaid land. Dhan Singh died in January/February, 1976 though the exact date of his death did not come on record. Rajdey, Mariya and Chandrawali who, as stated earlier, had been declared owners of 3/4th share of the aforesaid agricultural land by virtue of a collusive decree dated October 8, 1975 filed a suit being, suit No. 67 of 1976 against their sister Femo and her five sons named above for possession of 15/16th share of land as according to them they were entitled to the said share (3-4th share on the basis of the collusive decree and 3/J6th share of the aforesaid property on account of inheritence to the share of their deceased father in terms of provisions of the Hindu Succession Act). It was further alleged in the said suit that the sons of Femo were only licensee in the suit land. Some other reliefs were also sought in the suit which are not necessary to be noticed for purpose of disposal of these appeals.

Jugti and his four brothers, i. e. the sons of Femo also filed a suit being suit No. 1-C of 1977 on January 3, 1977 against their mother''s sisters, namely Rajdey, Mariya and Chandrawali on various pleas, amongst others, that they were the owners in possession of the land under the Will dated December 8. 1975 executed in their favour by Dhan Singh father of their mother Femo and that the decree dated October 8, 1975 obtained by Rajdey, Mariya and Chandrawali was collusive and therefore, void and in any case was the outcome of fraud played on Dhan Singh. Further, an injunction was sought that Rajdey, Mariya and Chandrawali be injuncted from interfering in their possession. As already noticed, the two suits were between the same parties and related to the estate of Dhan Singh, the trial Court consolidated both the suits and disposed of by a common judgment and decree dated March 20, 1978. The net result of the said judgment and decree was that Jugti and his four brothers were held to be the owners of l/4th share of the suit land besides a house and a plot. An Injunction was also granted in their favour restraining Rajdey, Manya and Chandrawali from interfering in their possession except in due course of law. Rajdey etc. were held to be the owners of 3/4th share of agricultural land only. Jugti Ram etc. were liable to be evicted in due course of law. The relief of mesne profits, as claimed by them, was declined.

Aggrieved by the judgment and decree of the trial Court, four appeals were filed, two by Rajdey etc, and other two by Jugti Ram etc. challenging the respective findings recorded against them in the two suits by the trial Court All the four appeals were disposed by a common judgment and decree dated October 27, 1978 by learned Additional District Judge. The appeals were dismissed and the findings, as recorded by the trial Court, were affirmed. It is against this judgment and decree that the present two appeals have been filed by Jugti Ram, etc. Cross objections filed by Rajdey and others, in R. S. A. 1131 of 1979 have already been dismissed by this Court vide order dated November 16, 1982.

Learned counsel for the appellants raised only two contentions, (i) that the decree dated October 8, 1975 obtained by Rajdey Mariya and Chandrawali is collusive, illegal and void and, therefore, did not affect the rights of the appellants and (ii) in any case the said decree required registration and in the absence thereof, it did not create any right title or interest in favour of the decree holders.

The second contention of learned counsel for the appellants has no merit and deserves to be rejected straightway in view of an authoritative pronouncement of a Division Bench of this Court in Gurdev Kaur and Another Vs. Mehar Singh and Others, , wherein it was ruled as under : -

"For the reasons recorded above, by agreeing with the view taken in the judgments cited above that a compromise decree does not require registration, provided the Immovable property is subject matter of the suit, we hold that a compromise decree regarding Immovable property which is subject matter of the dispute in the suit, does not require registration, even if title is created in favour of the decree holder for the first time under the decree, whether with consideration or without consideration".

As regards the first contention, learned counsel for the appellants submitted that Will Exhibit P-l was executed by Dhan Singh within two months of the alleged decree bequeathing his entire property in favour of Jugti and others without making any reference to decree dated October 8, 19 75 alleged to have been obtained by Rajdey and others. According to the learned counsel, this circumstance alone was sufficient to hold that the decree was illegal and void especially when a finding had been recorded by the two Courts below that it was a collusive decree and had Dhan Singh been aware of decree dated October 8, 1975 he would have certainly made a reference thereto in the Will. The Will made by Dhan Singh only refers to his entire property and not to )/4th share in the property. Learned counsel for the appellants pointed out that Dhan Singh made a statement in Court on the basis of which decree dated October 8, 1975 was passed and the said statement, as per the evidence adduced on record, bore thumb impression of Dhan Singh. Rajdey and others took no step to get the thumb impression of Dhan Singh appearing on his statement recorded in that suit compared with his admitted signatures. This clearly leads to an inference that some person other than Dhan Singh appeared in Court and made statement on the basis of which the decree was passed and, therefore, the said decree was void, argued, the counsel.

Having considered the contention of learned counsel for the appellants, I find no merit therein. After the evidence was recorded in the case, it became wholly immaterial as to on whom the onus lay to prove a particular fact. As is clear from the record, the appellants did produce a handwriting expert who compared the disputed thumb impression of Dhan Singh appearing on the Will with his thumb impression on the written statement filed in the suit which culminated into a decree dated October 8, 1975 and if, Jugti etc. were so sure that the thumb impression appearing beneath the statement of Dhan Singh made in the suit were not of Dhan Singh, it was open to them to get the same also compared with his admitted thumb impression. Having failed to do so, they cannot take advantage of it at this stage. The evidence already produced in the case and, as accepted by the two Courts below clearly lead to the conclusion that decree dated October 1,1975 is a good decree in the eye of law and Rajdey, Mariya and Chandrawali daughters of Dhan Singh got a perfect title thereunder. No other point was urged before me.

For the foregoing observations, both the appeals fail and are consequently dismissed leaving the parties to bear their own costs throughout.