Niranjan Singh (Died) vs Sadhu Singh

N.K. Kapoor, J.—This is defendants regular second appeal against the concurrent judgments of the courts below.

The case indeed has a chequered history. Earlier too, parties litigated upto High Court and it is only vide judgment and decree of this Court dated 2.12.1965 that the plaintiffs were held to be owners to be extent of 3 bighas of land in the village abadi in Khasra No. 2583. As regards the claim of the plaintiff with regard to the remaining property, the same was dismissed. It is pursuance to the judgment and decree of this court dated 2.12.1965 that the plaintiffs filed the present suit for possession by means of partition of land measuring 3 bighas (5 Kanals) now comprised in Khasra No. 698 M (previous Khasra No. 2583) in land measuring 8 Kanals 19 Marias situate at Kharar and shown as ABCDEF in the site plan. It is the case of the plaintiff that they are vendees from Mohammed Hassain and Barkat Khan under six different sale deeds dated 20.9.1935. Earlier there was some criminal litigation between these transferees and the defendants which ultimately led to the filing of the suit which was finally decided by this Court on 2.12.1965. Since the right of the plaintiffs was finally determined to the extent of three bighas, plaintiffs claimed possession of the vacant site marked ABCDEF as per site plan now forming part of Khasra No. 698 Min. The plaintiffs have stated that earlier this vacant site i.e. ABCDEF as comprised in Khasra No. 2583 Min and after consolidation of holdings in the village it was substituted into Khasra No. 698 in Min. Since the plaintiffs claim for possession was being resisted by the defendants, hence the present suit.

The contesting defendants filed written statement and took the following preliminary objections: (i) that the suit is bad for non-joinder of necessary parties; (ii) that the share of the vendors in 8 Kanals 19 Marias vis-a-vis other proprietors/co-sharers is to be determined qua the share of the vendors on the whole area of abadi and that the present suit is for partial partition; (iii) that part of land now vest in Gufdwara Sri Kalgidhar which has, however, not been impleaded and so suit cannot proceed in the absence of Gurdwara Sri Kalgidhar. On merit, it has been averred that no doubt High Court has finally determined with regard to the share of the plaintiffs in the joint holding but all the same it cannot be determined unless all the co-sharers/owners of the village are impleaded as necessary parties. In any case even, as per judgment of the High Court, they plaintiffs have merely been declared to be the owners to the extent of three bighas in village abadi subject to adjustment at the time of partition. This way plaintiffs cannot claim share only in Khasra No. 698 Min. According to the defendants, Khasra No. 698 Min measures 453 kanals 16 marlas and unless the same is partitioned, no relief can be granted to the plaintiffs.

On the pleadings of the parties, following issues (including the additional issues after the remand of the case) were framed:-

Whether the suit in the present form is maintainable ?

1-A. Whether defendant No. 23 has become owner by way of adverse possession ? OPD.

1-B. Whether the suit is bad for partial partition ? OPD.

Whether suit is properly valued for the purpose of court fee and jurisdiction ? OPP.

Whether the suit is bad for non-joinder of necessary parties ? if so, its effect ? OPD.

Whether the suit is barred by principles of res-judicata under Order Rule 2 C.P.C. ? OPD.

Whether the plaintiffs are entitled for relief claimed ? OPD.

5-A. To what share art the plaintiffs entitled to ? OPP.

5-B. Whether the amended plaint has been signed by all the plaintiffs, if not its effect ? OPP.

Relief.

Additional Issues

3-A. Whether Amri Singh S/o Tulsi, Gopal Singh son of Nirain Singh were dead at the time of institution of suit, if so, its effect ? OPP.

4-A. Whether jurisdiction of civil court is barred as in para No. 9 of the preliminary objection 9 of the written statement ? OPD.

The suit of the plaintiffs in the first instance was decreed vide judgment and decree dated 30.11.1991. The appeal preferred against the judgment and decree was accepted by the Additional District Judge vide judgment and decree dated 18.4.1983 and the case was remanded. The Court while remanding the case gave direction to the trial court to allow the plaintiffs to implead the legal representatives of Gopal Singh and others co-sharers in the suit land who were party to the earlier litigation. The matter was once again examined by the Court. Issues No. 1, 1B and 5 were taken up together. In fact, these issues are material issues to the controversy raised. The Court while considering the matter once again referred to the binding effect of the earlier judgment of this Court Exhibit P8 dated 2.12.1965 whereby ownership rights of the plaintiffs to the extent of 3 bighas of land stood crystalised in respect of Khasra No. 2583. The Court after threadbare discussing the oral as well as documentary evidence came to the conclusion that the matter was finally determined by this Court that plaintiffs have shares to the extent of three bighas of land in Khasra No. 2583 shown as ABCDEF and that this precise piece of land was given its new No. 698 Min after consolidation of holdings in the village. Thus, according to the court, there was no ambiguity about the location of the disputed property or to the share of the plaintiff in this land. Accordingly, the Court came to the conclusion that the plaintiffs can claim their share on this specific piece of land excluding the land which has remained in possession of Gurdwara Sri Kalgidhar for over a period exceeding 12 years and to that extent the plaintiffs as well as defendants lose their shares. Since the total land is 8 Kanals 19 Marias i.e. 179 Marias and the plaintiffs claim is for 5 Kanals of land equivalent to 100 Marias, and dimunition of area which is now in possession of the Gurdwara, both the parties shall bear the loss proportionately. The court examined evidence in respect of other issues as well as decided the same. Thus the primary contest between the parties relate to the aforesaid three issues which have been briefly noticed. There is no need to burden the judgment by giving in detail the findings of the Court in respect of other issues. The Court in its final conclusion passed a decree for partition in respect of 8 Kanals 19 Marias to the ratio of 100: 79 less the area which is in occupation of Gurdwara. Feeling dissatisfied with the judgment and decree of the trial court, defendants preferred appeal. The Court once again examined the matter on facts as well as on law but found no ground to vary or reverse the judgment and decree of the trial Court. Accordingly, the appeal was dismissed vide judgment and decree dated 9.3.1988.

Challenging the concurrent findings of the Courts below, learned counsel for the appellants has termed these to be wholly illegal and improper. According to the counsel, the Courts below have misunderstood and misinterpreted the judgments of this court in Regular Second appeal No. 183 of 1958 decided on 2.12.1965. Elaborating, the counsel argued that vide judgment dated 2.12.1965 plaintiffs were declared to be owners to the extent of three bighas of land in Khasra No. 2583 subject to its adjustment at the time of partition. This judgment is clear and does not restrict the right of the plaintiffs to khasra No. 2583 Min and so it was incumbent upon the plaintiffs to claim partition in respect of whole of abadi land and implead all the co-sharers of Khasra No. 2583. Since concedcdly in the present suit neither the claim is laid in respect of the whole land comprised in Khasra No. 2583 nor all the co-sharers have been impleaded, the present suit ought to have been dismissed for partial partition. The lower appellate Court also erred in not deciding the issues which were agitated and argued and that too for the reason that earlier the issues have been decided vide judgment dated 18.4.1983. Since vide judgment dated 18.4.1983 the appeal was allowed and the case was remanded, it was incumbent upon the Court to decide the entire case afresh. Similarly, it was incumbent upon the lower appellate Court to decide those issues afresh also. The Court has also not properly decided as to the question of non-impleading of legal representatives of Tulsi Ram. In support of his submission, counsel placed reliance upon the judgment reported as Phangan Singh v. Hukam Singh AIR 1933 Lah 588; Nihalu and Anr v. Chander and Ors. ILR 1959 P&H 162 and Bhartu v. Ram Sarup 1981 P.L.J. 204.

Facts leading to the present controversy have already been noticed in brief. It is some times in the year 1935 that the plaintiffs purchased land vide six different sale deeds. Since they were deprived of their right to enjoyment of property purchased by them, they filed a suit which finally determined their right to the extent of three bighas out of the total land purchased by them it is with a view to get possession of the area purchased way back in the year 1935 that once again the plaintiffs had knocked the door of the Court for the desired relief. It has come on record that before Mohammad Hassain and Barkat Khan sold various parts of the land vide six sale deeds, there was some litigation between them and the notified area Committee, Kharar, for possession of land. Their claim was decreed on 1.5.1930. Pursuant to the decree passed in their favour, they were put in possession which land was ultimately sold to the plaintiffs vide sale deed dated 20.9.1935. It is thereafter that some dispute arose between the present appellants and other in habitants leading to the initiation of criminal proceedings u/s 145 of the Code of Criminal Procedure. These proceedings were decided in favour of the appellant-defendants thus compelling the plaintiffs to file suit. In the earlier suit finally decided by this Court on 2.12.1965, the plaintiffs claimed possession of the vacant site along with Kotha standing therein bounded as given in plan attached with the plaint marked as ABCDEF comprised in Khasra No. 2583 situate at Kharar, District Ambala according to jamabandi for the year 1943-44. Keeping in view the precise relief claimed by the plaintiffs, the Court finally granted a declaration to the effect that plaintiffs are owners to the extent of 3 bighas in village abadi in Khasra No. 2583 subject to its adjustment at the time of partition. According to the appellants, since the judgment refers to the share of the plaintiffs in Khasra No. 2583 subject to its adjustment at the time of partition, it should be inferred that this share be determined in respect of the whole land comprised in Khasra No. 2583 and so the plaintiffs claim cannot be confined to land comprised in an area marked as ABCDEF in the plaint. I find this submission devoid of substance. Operative part of the judgment is to be read in the context of the dispute raised by the parties. The plaintiffs vide earlier suit admittedly claimed possession of the vacant site along with kotha standing therein and as shown in the site plan marked as ABCDEF. Thus there is no manner of doubt that the parties are aware of the precise dispute which indeed was confined to the land marked ABCDEF and it is in keeping in view the precise nature of the dispute and the contentions raised by the parties that the Court finally came to the conclusion that the plaintiffs are the co sharers to the extent of three bighas of land in total land comprised in area marked as ABCDEF forming part of Khasra No. 2583. Again while filing the present suit, the phintiffs have in clear terms expressed the relief sought i.e. possession through partition of land measuring three bighas (5 Kanals) comprised in Khewat No. 698 Min measuring 8 Kanals 19 Marias situate at Kharar, Tehsil Kharar, District Rbpar, now shown as ABCDEF in the site plan. There is no dispute between the parties that during the consolidation of holdings in the village the disputed land. i.e. ABCDEF measuring 8 Kanals 19 Marias was given new Khasra No. 698 Min. So even during the consolidation, the identity of this piece of land has been retained by the authorities. Thus, the case when examined in the light of this factual aspect leaves no manner of doubt that the parties during all these 50/60 years have been fighting in respect of specific portion i.e. ABCDEF now comprised in Khasra No. 698 Min.

The plaintiffs claimed a share in an area marked ABCDEF (earlier of Khasra No. 2583 and now Khasra No. 698 Min) as noticed by this Court in judgment dated 2.12.1965 and so the Courts have rightly determined the rights of the parties in this piece of land which is the only vacant site. Since out of this piece of land a part of land had been in occupation of Gurdwara Sri Kalgidhar, the Courts thought it appropriate to exclude its area to this extent and divide the remaining in the ratio of 100:79. The approach of the Courts below in the context of the peculiar facts of the case is just and appropriate that the plaintiffs predecessor''s possession having been interfered, initiation of criminal proceedings u/s 145 of the Code of Criminal Procedure, finally leading to the filing of the suit the grant of declaration vide judgment dated 2.12.1965. So the objection raised by the appellant that the share of the plaintiffs be only determined after taking into account the total area of Khasra No. 2583, concededly part of which is under the houses and street, and, in fact, a big town has come into existence is nothing but an attempt to deprive the plaintiff-respondents of their valuable right of possession to a small piece of land measuring 5 Kanals approximately.

Similarly, I find no substance in the plea of the appellants that the lower appellate Court has declined to interfere with the findings of the trial Court in respect of some of the issues which had earlier been determined vide judgment and decree dated 18.4.1983. As a matter of fact, the objection raised is hypertechnical. If one peruses the judgment of this Court dated 2.12.1965 and subsequent two judgments of the Courts below and the judgment and decree dated 18.4.1983, it becomes amply clear that each of the aforesaid issues, in fact, had been discussed and decided threadbare share and the crux of the dispute primarily remained with the share of the plaintiff in the joint holding shown as ABCDEF in the site plan attached with the plaint. Even the Additional District Judge vide judgment and decree dated 18.4.1983 clearly stipulated that the Court after affording opportunity to the parties to adduce evidence and even to recall the witnesses already examined for cross-examination directed the Court to determine the share of the plaintiffs as determined by the earlier decree dated 2.12.1965. Otherwise too, even the added defendants and the persons who have come on record being legal representatives of the deceased defendant had almost set up identical claim like other defendants. Thus, no prejudice had been caused for not making an elaborate discussion upon the issues which had almost become final.

The judgments cited by the learned counsel for the appellants, in fact, have no applicability on the facts of the present case. In Phangan Singh''s case (supra), the Court held that a suit for a partition of a portion only of the family property is not maintainable i.e. suit for partial pre-emption is not maintainable. There is no dispute with regard to the proposition of law enunciated by my learned brother. Similarly, in Nihalu and Anr.''s case (supra), the Court held that co-owners have no separate right with respect to any distinct portion of the common property. I respectfully agree with the view of the Division Bench. However, as noticed in the earlier part of the judgment, this case has some peculiar features. The parties in the instant case are contesting almost for the last 50 to 60 years. Even in the earlier judgment, the precise claim which was laid by the plaintiff was that he be given possession of a vacant site along with kotha standing therein out of the site marked as ABCDEF which declaration was granted by the Court stating that the plain tiffs are owners to the extent of three bighas out of land ABCDEF situate in Khasra No. 2583 subject to its adjustment at the time of partition. It is in view of the declaration granted by this court that the plaintiff claimed possession through partition to the extent of his in this holding which now measures 8 Kanals 19 Marias and shown as marked ABCDEF in the site plan. So the case when examined in the light of the aforesaid factual aspects, reveals that this area has acquired an identity of its own and so can be partitioned. Both the courts on considering this matter have come to the Conclusion that the area measuring 8 Kanals 19 Marias be divided in the ratio of 100: 79 less the land which is in occupation of Gurdwara Sri Kalgidhar i.e. plaintiffs and defendants will proportionately share the loss in respect of the area in occupation of Gurdwara. I find no infirmity in this conclusion of the Courts below.

Resultantly, finding no merit in the appeal the same is dismissed. No order as to costs.