Parkash Kaur vs Avtar Singh

R.L. Anand, J. (Oral)

The legal representatives of unsuccessful plaintiff Satnam Singh have filed the present R.S.A. and it has been directed against the judgment and

decree dated 14.1.2000 passed by the Additional District Judge, Amritsar, who affirmed the judgment and decree dated 25.3.1995, vide which

the suit of the legal representatives of plaintiff for declaration as prayed for was dismissed.

The brief facts of the case are that Satnam Singh filed a suit for declaration that he was owner in possession of the land measuring 33 kanals 7

marls fully detailed in the headnote of the plaint situated in village Nangli and that the decree dated 18.12.1980 was not binding on him. It was

alleged by Satnam Singh that he and defendants No. 2 to 6 are the sons of defendant No. 1 Avtar Singh. The parties are covered by Hindu Law

and they constitute a joint Hindu family. The land in question was ancestral in the hands of defendant No. 1. In a family settlement the entire land

was divided and the land in suit fell to the share of the plaintiff. Killa No. 59/5 was mortgaged with defendant No. 7, which was redeemed by the

plaintiff and an agreement was executed. Defendants No. 2 to 6 filed a civil suit on 30.10.1980 against Avtar Singh and others and that suit was

decreed on 18.12.1980. The plaintiff was not impleaded as a party in that suit. The land which fell to the share of the plaintiff, however, was

included in that suit which was decreed on 18.12.1980. According to the plaintiff, he is the owner in possession of the suit property by virtue of

family arrangement which was reduced into writing on 21.7.1980 and subsequently in the Panchayat dated 5.8.1980. The appellant further alleges

that he is not bound by the judgment and decree dated 18.12.1980 to the extent of his share. Hence the suit.

The suit was contested by the defendants. According to them the land was not ancestral or coparcenary in the hands of Avtar Singh. It was also

denied that the land in suit ever fell to the share of the plaintiff in the family settlement. The documents relied upon by the plaintiff are forged and

have no effect on their rights. They pleaded that they had only right to redeem killa No. 58/5. The decree dated 18.12.1980 is legal and valid and

the plaintiff was not a necessary party in that suit. It was also pleaded by the defendants that Smt. Surinder Kaur wife of Avtar Singh and mother of

Satnam Singh was also the legal heir and was also entitled to succeed the estate of Avtar Singh.

From the pleadings of the parties, the learned trial Court framed the following issues :

Whether the judgment and decree passed by Sh. R.P. Nagrath dated 18.12.1980 is not binding upon the plaintiff ? OPP

Whether the plaintiff is owner of the suit property on the basis of family settlement dated 21.7.1980 settled by the Panchayat in 1980, if so,

whether he is entitled to declaration ? OPP

Whether the plaintiff has got redeemed the land from the defendant No. 7 mortgaged with him, if so, its effect ? OPP

Whether the suit is not maintainable in the present form ? OPD

5A. Whether the plaintiff has no locus standi to file the present suit ? OPD

5B. Whether Sawinder Kaur defendant No. 8 is entitled to inherit the property of deceased Satnam Singh ? OPD

5C. Whether the suit land is ancestral coparcenary property of the plaintiffs and defendants ? If so its effect ? OPP

Relief.

The parties were given the chance to lead evidence. They led the evidence and ultimately vide judgment and decree dated 25.3.1995 the suit of

Satnam Singh was dismissed.

Aggrieved by the judgment and decree of the trial Court, the legal heirs of Satnam Singh filed the first appeal before the Court of Additional

District Judge, Amritsar, who for the following reasons as given in paras 8 and 9 of the judgment, dismissed the appeal :

Dalbir Singh Patwari PW1 has proved the voter list. Darshan Singh s/o Didar Singh has proved the agreement Ex.P1. Mohan Singh

Chowkidar PW3 has deposed that Satnam Singh is the son of Avtar Singh. Satnam Singh has died. Parkash Kaur is the wife of Satnam Singh.

Amarjit Kaur and Harpreet Kaur are the daughters and Jagtar Singh is the son. Satnam Singh partitioned the suit land with his parents. Parkash

Kaur living in the village with his children. Samund Singh PW4 has deposed that partition of the land was got done with their intervention and

writing to that effect is Ex.P1. Sarup Singh PW5 has proved the resolution of the panchayat. Puran Singh PW6 has deposed that the suit property

is ancestral of Avtar Singh and deposed about the partition of the land. Piare Lal Kanungo has deposed that in the jamabandi for the years 191516

and 191920 Hardit Singh has been shown as owner and in the jamabandi for the year 192324 Hardit Singh has been shown dead and his heir

Mewa Singh has been shown and mutation of inheritance is 930 and in the jamabandi for the year 193738 Mewa Singh has been shown as owner.

In the jamabandies for the years 194546 and 195455 Mewa Singh has been shown as owner. Mewa Singh is owner of the suit land. Precept is

Ex.PW7/1. Copy of Sajjara is Ex. PW7/2. Khatauni Istemal is Ex.PW7/5. He has further proved copy of jamabandi for the year 196162

Ex.PW7/6. Naqsha Haqdarwar Ex.PW7/8, jamabandi for the year 195455 Ex.PW7/9, jamabandi for the year 194546 Ex. PW7/10, jamabandi

for the year 193637 PW7/11, jamabandi for the year 192324 PW7/12, jamabandi for the year 191920 PW7/13, jamabandi for the year 191516

PW7/14. Mutation of inheritance has been sanctioned after the death of Hardit Singh in favour of Mewa Singh. Kehar Singh PW has deposed that

compromise was effected between the parties which is Ex.P1. Mann Singh PW has deposed that Avtar Singh was the son of Avtar Singh and after

his death his wife, two daughters and one son are the heirs. The suit property is ancestral property. PW9 Lakhwinder Singh has proved the

receipts of revenue Ex.PW9/1 to Ex.PW9/15. Parkash Kaur PW has deposed that the suit land was earlier ownership of her husband and after

the death of her husband Satnam Singh, she and her daughters Amarjit Kaur, Harpreet Kaur and son Jagtar Singh are cultivating the suit land. Suit

property is ancestral property and they are governed by Hindu Law. They constituted Hindu Joint Family. About 14 years ago her fatherinlaw

separated the share of her husband and since then they are cultivating the same. She is in possession as owner of her share. Avtar Singh as Karta,

in family settlement gave the suit land to her husband.

On the other hand Mangal Singh DW has deposed that suit land is the ownership of Avtar Singh. Satnam Singh has died. They are not governed

by Hindu Law and are governed by customary law. Avtar Singh is in possession of the suit land. Avtar Singh has deposed that he is owner in

possession of the suit land. Jamabandies are Ex.D1 to D4, girdawri Ex. D5 to D6. They are living jointly. They are not governed by Hindu Law.

Piara Singh has supported the case of Avtar Singh. Sawinder Kaur has supported the case of Avtar Singh.

It was argued by the learned counsel for the appellants that Hardit Singh was owner of the suit land and the land was inherited by his son Mewa

Singh and from whom defendant No. 1 inherited the property and the suit land is ancestral of the parties. This contention has no force because in

the jamabandi for the year 191920 Ex.PW7/13 Hardit Singh is recorded as owner of the land and it was inherited by his son Mewa Singh vide

mutation No. 930. Defendant No. 1 Avtar Singh did not inherit the property from Mewa Singh by of survivorship but inherited the property on the

basis of the Will as is clear from the copy of mutation Ex. PX4. So, the suit land in the hands of defendant No. 1 is not the ancestral property.

Defendants No. 2 to 6 filed civil suit No. 274 of 1990 for declaration that they are owners in possession of the land measuring 166 kanals being

6/7 share of total land measuring 193 kanals 15 marlas which included the suit land as is clear from the certified copy of the plaint. Ex.PX/5. The

suit was decreed on 18.12.1980 as is clear from the certified copy of judgment Ex.PX8. It was argued by the learned counsel for the appellants

that the family settlement relied upon by the appellants is admissible. In support of his contention he has cited Parduman Singh and other v. Kartar

Singh, 1996(2) R.R.R. Page 399. These contentions have no force because Joginder Singh, Balwinder Singh, Surjit Singh, Santokh Singh, Malkiat

Singh and Surinder Kaur filed a suit against Avtar Singh for declaration that the plaintiffs are the owners of the land measuring 166 K being 6/7

share. The said suit was decreed vide judgment Ex.PX/8. The family settlement Ex.P1 is not registered. The ownership rights were not conferred

on Satnam Singh vide writing Ex.P1. The suit property is not ancestral property. So, I am of the view that the suit of the plaintiffsappellants has

been rightly dismissed by the lower court. The findings of the lower court on all the issues are affirmed and the appeal of the plaintiffs appellants is

dismissed. Parties are left to bear their own costs. Decree sheet be prepared and record be consigned.

In this manner the present appeal.

I have heard Mr. B.R. Mahajan, learned counsel for the appellants and with his assistance have gone through the record of the case. After

hearing the learned counsel, I am of the opinion that this appeal deserves to be dismissed in limine and at the motion stage itself. The learned

counsel tried to convince this Court that the property in the hands of Avtar Singh was ancestral and even if it is assumed for the sake of argument

that the property in the hands of Avtar Singh was selfacquired, even then the decree dated 18.12.1989 shall not confer a valid title upon

defendants No. 2 to 6 because the said decree was never registered. The first point for determination would be what was the case set up by the

plaintiff. In the present case it has been alleged by the plaintiff that the property in question is ancestral one and on the basis of family settlement

dated 21.7.1980 and 5.8.1980 the suit land had fallen to his share and further that the decree dated 18.12.1980 does not confer any valid title on

defendants No. 2 to 6.

Let us see whether the plaintiff has been able to prove that the property in the hands of Avtar Singh was ancestral or was it ever treated as a

joint Hindu Family property so as to give any right, title or interest in favour of the plaintiff. The jamabandi for the year 191920 Ex.PW7/13 shows

that Hardit Singh was the owner of the land and it was inherited by his son Mewa Singh vide mutation No. 930. Defendant No. 1 Avtar Singh did

not inherit the property from his father Mewa Singh by way of survivorship, but he inherited the same from his father by way of Will Ex.PX/4. In

these circumstances, a reasonable inference can always be drawn that the property has not devolved by way of survivorship on Avtar Singh. The

property was nonancestral in hands of Avtar Singh. Also there is no indication that when Mewa Singh executed the Will in favour of his one Avtar

Singh, he wanted to keep the sanctity of the property being ancestral. Thus it has to be held that the property which came in the hands of Avtar

Singh was nonancestral. It was his personal property. Therefore, he was free to dispose it of. The judgment dated 18.12.1980 revels that

defendants No. 2 to 6 filed a civil suit and sought declaration that they are owners in possession of the land measuring 166 kanals being 6/7 share

out of the total land measuring 193 kanals 15 marlas. The suit was decreed on 18.12.1980. It is not the case of Avtar Singh that the decree which

was obtained against him by other defendants was the result of fraud etc. Since the plaintiff had no right, title or interest by birth or otherwise in the

estate held by his father Avtar Singh, therefore, it was open to Satnam Singh to giver challenge to that decree. The challenge could only be given to

that decree by Avtar Singh on the ground of fraud, misrepresentation etc. When the suit was instituted Avtar Singh was alive. Even now Avtar

Singh is alive and during the life time of his father neither Satnam Singh nor his legal heirs had the locus standi to file the suit.

Now let us examine whether there is any family settlement between the plaintiff and his father and whether by virtue of any family settlement the

property in question has vested to the plaintiff or not and whether that family settlement was ever acted upon. There was no preexisting right in

favour of the plaintiff with regard to the nonancestral property, hence there could not be any family settlement. The family settlement Ex.P1 so

relied upon by the plaintiff is not a registered document. It was never acted upon. In this view of the matter, the plaintiff cannot take the benefit of

socalled family settlement dated 21.7.1980 or any document which was allegedly executed in the presence of Panchayat. Both the Courts have

rightly came to the conclusion by dismissing the suit.

No merit. Dismissed.

Revision dismissed.