Ramesh Kumar and Others vs Shakuntla Devi and Others

Dharam Chand Chaudhary, J.—Plaintiffs are in second appeal. Aggrieved by the judgment and decree dated 3.9.2013, passed by learned District Judge, Hamirpur in Civil Appeal No. 59 of 2010, they have preferred this appeal for quashing and setting aside the same on the grounds inter-alia that both Courts below have mis-understood the nature of the suit land and erroneously applied Section 6 of the Hindu Succession Act thereto. Also that, the evidence available on record has not been appreciated in its right perspective, which has resulted into miscarriage of justice to them. The appeal is presently at its initial stage, being not admitted. While hearing learned counsel on both sides, at the stage of admission of the appeal, it transpired from the record received from the Courts below that the appellants-plaintiffs have sought the declaration to the effect that they are owner in possession of the land entered in Khata No. 1, Khatoni No. 1, Khasra Kita 26, land measuring 505 Kanals 15 Marlas to the extent of 1/2 share i.e. 253 Kanals, land revenue Rs. 16.10p. Khata No. 2, Khatoni No. 2, Khasra Kita 1 land measuring 26 Kanals 4 Marlas to the extent of 65/262 share i.e. 6 Kanals 10 Marlas land revenue Rs. 0.60p. Khata No. 4, Khatoni No. 4, Khasra Kita 1 land measuring 42 Kanals to the extent of 369/420 share i.e. 36 Kanals 18 Marlas land revenue Rs. 2.25p. Khata No. 5, Khatoni No. 5, Khasra Kita 1, land measuring 125 Kanals 5 Marlas to the extent of 1263/3340 share i.e. 47 Kanals 7 Marlas land revenue Rs. 2.10p. Khata No. 66, Khatoni No. 89 to 98 Khasra Kita 68 land measuring 243 Kanals 9 Marlas to the extent of 1/6 share i.e. 1 Kanal 5 Marlas land revenue nil total land in all Khatas 385 Kanals 11 Marlas total land revenue Rs. 22.05 paisa as per Jamabandi for the year 1984-85 situated in Tika Kharwar, Tappa Mehalta, Tehsil Bhoranj, District Hamirpur, H.P., consequent upon Will thereof having been executed by deceased Santa, their predecessor-in-interest during his lifetime and defendants No. 1 and 2 who fraudulently managed the sanction of mutation No. 712 in their favour to the extent of 1/7 share in the estate of deceased Santa @ Sant Ram in connivance with the revenue staff though have nothing to do therewith, however, on the basis of mutation, they got attested in their names unlawfully have started causing interference in the suit land.

It is defendants No. 1 and 2 alone who on entering appearance have contested the suit. Their stand as emerges from the perusal of the written statement, in a nut-shell, is that though the suit land was entered in the name of Santa @ Sant Ram as owner in the revenue record, however, the same being ancestral and joint Hindu family property, he was not sole owner thereof, rather was the ''Karta'' (manager) of joint Hindu family and his three sons namely, Karam Singh (plaintiff No. 1), Sarwan Singh and Duni Chand, predecessor-in-interest (husband of defendant No. 1 and father of defendant No. 2, respectively) to the extent of 1/4 share each. Therefore, the suit land could have not been conveyed by the deceased Santa by way of execution of Will dated 20.4.1982.

In counter-claims, it has been averred that deceased Santa at the time of alleged execution of the Will was not in sound disposing mind. The property otherwise also being co-parcenary would have also not been bequeathed by way of execution of the Will. The Will allegedly the result of fraud and misrepresentation has been sought to be declared illegal, null and void and not binding on the defendants. The remaining defendants had not opted for putting appearance and rather allowed themselves to be proceeded against ex-parte.

Replication, repelling the contentions in the written statement was also filed.

On the pleadings of the parties available on record, following issues were framed:

"1. Whether the deceased Santa alias Santa Ram had executed a valid will dated 20.4.1982 in favour of the plaintiffs?..OPP.

Whether entries in the revenue record qua suit land in favour of defendants No. 1 and 2 are wrong and illegal?..OPP.

Whether plaintiffs are entitled to the relief of permanent prohibitory injunction?..OPP.

Whether the suit land was ancestral joint Hindu family property qua Santa alias Sant Ram and his sons, as alleged?..OPD.

Whether deceased Santa alias Sant Ram had no right to alienate the suit land by way of will in favour of plaintiffs? ...OPD.

Whether the defendants No. 1 and 2 are entitled to the relief of permanent prohibitory injunction?..OPD.

Relief."

Learned trial Court after holding full trial and hearing the parties on both sides while answering issues No. 1 to 6 together has concluded that the Will dated 20.4.1982 is not a genuine document and as such, the entries showing the defendants as co-owner of the suit land to the extent of 1/7 share have been held legal and valid. Consequently, the suit was dismissed and counterclaim decreed and the decree sheets prepared separately.

The plaintiffs could challenge only the decree passed in the suit whereby the suit was dismissed in the trial Court on several grounds, however, mainly that the same is against the facts and law of the case and the result of mis-appreciation and misconstruction of the pleadings as well as evidence available on record.

No appeal was preferred against the judgment and decree whereby learned trial court has decreed the counter-claim, as is apparent from the head-note of the memorandum of appeal:

"Appeal u/s. 96 of C.P. C for setting aside the impugned judgment and decree passed in civil suit No. 195/86 titled as Ramesh Kumar and others versus Shakuntla Devi and others dated 30.3.2010 by which the lower court has wrongly and illegally dismissed the suit of plaintiff. After the acceptance of appeal the suit of plaintiff may be decreed throughout with cost as prayed for." 9. Learned lower appellate Court on hearing the parties on both sides and going through the evidence available on record has dismissed the appeal and affirmed the decree passed by the trial Court in the civil suit. The present appeal has arisen from the judgment and decree so passed by learned lower appellate court.

Interestingly, the appellants-plaintiffs have not challenged the judgment and decree whereby the counter-claims preferred by defendants No. 1 and 2 were decreed in the trial Court. Meaning thereby that the decree passed in counter-claims have attained finality. The suit for the relief of declaration, as sought, in the plaint cannot be decreed during the subsistence of the decree passed in counter-claims. The decree passed in counter-claims with the passage of time has attained finality. Learned counsel failed to satisfy this Court that at this belated stage when on the expiry of the period of limitation, a valuable right has accrued in favour of defendants No. 1 and 2, as to how the judgment and decree passed in counter-claims can still be challenged. As a matter of fact, the plaintiffs have acquiesced to the judgment and decree passed in the counter-claims and abandoned their right of filing appeal against it. Therefore, no legal question arises for consideration in the present appeal and as such, the admission thereof would hardly be of any help to the plaintiffs.

In view of what has been said hereinabove, there is no merit in this appeal and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.