Ranjeet vs Pirthi

R.L. Anand, J.

Unsuccessful plaintiff Ranjit son of Chhaju has filed the present appeal and it has been directed against the judgment and decree dated 16.5.1979 passed by Addl. District Judge, Hissar, who though reversed some findings of the trial Court as contained in the judgment dated 18.11.1978, still affirmed the said judgment and decree of the trial Court and dismissed the appeal by holding that the frame of the suit of the plaintiff was defective.

The facts of the case can be noticed in the following manner :

Ranjit son of Chhaju filed a suit for possession of the land measuring 68 kanals being 136/313 share of the land measuring 156 kanals 10 marlas situated in the area of village Bar Chhappar against Pirthi Singh, Umed Singh, Ran Singh, Muasi, Sultan, Kapura and Bharat Singh. The parties in this case are collaterals as is evident from the following pedigree table. Dilsukh had two sons by the names of Ganga Ram and Bhola. Ganga Ram had two sons by the names of Sakhu Ram and Chhaju. Plaintiff Ranjit is the son of Chhaju. Defendant No. 1 Pirthi Singh and defendant No. 2 Umed Singh are the sons of Sakhu Ram. Defendant No. 3 Ram Singh is the son of Hira, who was the son of Bhola. Muasi, Sultan, Kapura and Bharat Singh, defendants Nos. 4 to 7 respectively, are the sons of Ran Singh son of Hira, defendant No. 3. Thus it can be said that Dilsukh was the common ancestor of the parties. He possessed 480 bighas of land which devolved upon the parties by way of succession. Uptil the year 195253, i.e. before consolidation, they had a joint khewat in which plaintiff Ranjit was the owner to the extent of 1/4th share. Defendants No. 1& 2 had 1/4th share jointly and Ram Singh, defendant No. 3, of the remaining 1/2 share. Consolidation took place in the village in the year 195253 and in that process three separate khewats were allotted by the consolidation authorities, one to Ranjit, second jointly to Pirthi Singh and Umed Singh, defendants Nos. 1& 2 and third to Ran Singh, defendant No. 3. The land allotted to the plaintiff during the consolidation was 152 kanals and 15 marlas and to defendants Nos. 1 and 2 was 156 kanals and 10 marlas. The said two khewats were used to be irrigated through Mali minor. The land which was allotted to Ran Singh, defendant No. 3, was 570 kanals & 17 marlas in the area of Dabar and it used to be irrigated by Sunder Branch. It appears that subsequently Ran Singh transferred his ownership rights in the whole of the area measuring 570 kanals 17 marlas in favour of his four sons, i.e. defendants Nos. 4 to 7. The plaintiff filed the suit on 9.4.1975. On that day defendants Nos. 4 to 7 were recorded as owners of the land measuring 570 kanals 17 marlas. The plaintiff is claiming the possession of the land measuring 68 kanals on the basis of document Ex. P1 which is dated 30.3.1972. The case set up by the plaintiff is that notwithstanding the allotment of separate khewats to the parties during consolidation proceedings in the manner referred to above, the parties were in joint cultivation of whole of the land allotted during consolidation and that he was cultivating a part of the land belonging to Ran Singh, defendant No. 3, through tenants and so did defendants Nos. 1 and 2. Similarly Ran Singh, defendant No. 3, cultivated a part of the land allotted to the plaintiff during consolidation. The plaintiff also claimed that he had constructed two kothas at the cost of Rs. 5,000/ in the land which was allotted to defendant No. 3 and cultivated the same after consolidation. In this way he claimed that during the consolidation a total area of 108 acres was allotted to the parties and he was in cultivation of 27 acres. Defendant No. 1 was also in possession of 27 acres and Ran Singh, defendant No. 3, along with his sons defendants Nos. 4 to 7 was in possession of the remaining 54 acres. A dispute started when Ran Singh transferred 570 kanals 17 marlas of land in favour of defendants Nos. 4 to 7. So, on 30.3.1972 a Panch ayat under the presidentship of Dada Bhale Ram was convened. Many persons collected in that Panchayat including the plaintiff, defendants Nos. 1, 2, 3 & 6 and after hearing the parties, a decision was announced by the Panchayat and it was accepted by the parties and according to that decision, out of about 71 acres of land allotted to Ran Singh, defendant No. 3, in the area of Dadar, he and his sons would keep with them 541/2 acres of land and they would vacate 161/2 acres of land which will be taken possession of by defendants Nos. 1 & 2 and it will be transferred in their favour. It was further agreed that defendants Nos. 1 &2 would transfer 81/2 acres of land to the plaintiff out of 27 acres of land given to them in Rajbah area. The comprise was enforced through Harphul son of Hazari, Kapur Singh son of Mauzi, Munshi Ram son of Aas Ram and Munshi son of Girdhala and a memorandum Ex. P1 of the compromise was prepared and it was attested by the plaintiff and defendants Nos. 1, 2, 3 & 6. The case set up by the plaintiff further is that in pursuance of the said compromise he vacated 18 acres of land standing in the name of Ran Singh and under his cultivation. Similarly, defendants Nos. 1 and 2 also vacated 18 acres of land belonging to Ran Singh and Ran Singh also vacated the land cultivated by him but belonging to the plaintiff. It was also claimed that assurance was given by defendants Nos. 3 to 7 that they would get 161/2 killas of land transferred in favour of defendants Nos. 1 & 2 and they would transfer 68 kanals of land in favour of the plaintiff and that mutation would accordingly be got sanctioned at the cost of the plaintiff. But the defendants did not honour the assurance. Hence the suit.

The suit was contested by the defendants. Defendants Nos. 1 & 2 filed joint written statement. Defendants Nos. 3 to 7 also filed a separate written statement. They denied the whole story of the plaintiff including his version of joint cultivation and compromise. They denied each and every averment made by the plaintiff.

The pleadings of the parties gave rise to the following issues :

Whether the plaintiff is the owner of 136/313 share of the land in dispute as alleged ? OPP

Whether panchayat decided the alleged dispute in favour of the plaintiff as detailed in para No. 6 of the plaint, if so to what effect ? OPP

Whether the suit is time barred ? OPD

Whether the plaintiff is estopped from filing this suit by his act and conduct ? OPD

Whether the plaintiff has no locus standi to file this suit ? OPD

Whether the suit is bad for misjoinder of parties ? OPD

Whether the proper court fee has not been affixed on the plaint ? OPD

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

Relief.

The parties led oral and documentary evidence in support of their respective cases and the trial Court decided issues Nos. 1 and 3 against the plaintiff and in favour of the defendants. Issue No. 3 was decided against the plaintiff and the suit was held to be barred by limitation. Issue No. 4 was decided against the plaintiff and in favour of the defendants. While deciding issues Nos. 5 and 8, the trial Court held that the plaintiff has no locus standi to file the present suit and the suit is not maintainable in the present form. Resultantly, these issues were again decided in favour of the defendants and against the plaintiff. However, issues Nos. 6 and 7 were decided against the defendants and finally the suit was dismissed vide judgment and decree dated 18.1.1978.

Aggrieved by the judgment and decree of the trial Court, unsuccessful plaintiff filed the first appeal before the Court of Additional District Judge, Hissar, which, of course, reversed the findings of the trial Court on issues Nos. 4, 5 and 8, but affirmed the findings of the trial Court on issues Nos. 1, 2 and 3 and dismissed the appeal of the plaintiff. The findings of the trial Court on issue No. 3 were affirmed although for different reasons. Thus, in this manner, the findings of the Courts below had gone against the plaintiff on issues Nos. 1, 2 and 3. I am also confining my discussion on issues Nos. 1, 2 and 3, after going through the grounds of appeal and the records of the trial Court, as no assistance is being provided to me by the counsel for the parties.

The case set up by the plaintiff was that under a compromise dated 30.3.1972 it was agreed upon by the defendants Nos. 1 to 7 that plaintiff has become the owner of the suit land measuring 68 kanals. The compromise is Ex. P1 on the record. It is not on any stamp paper nor this document is a registered one. At the most, it can be said an agreement. Whether it is with or without consideration will be a different aspect. There is no averment in this agreement when the defendants would allegedly give the possession to the plaintiff. Thus, it can be said that the cause of action arose to the plaintiff, if any, on the date of the agreement dated 30.3.1972. It can be equally said with force that it is not a suit for specific performance. It is a simple suit for possession. If the agreement does not convey any right, title or interest to the plaintiff, it remains a simple agreement and as such without having any title with respect to the land in question the plaintiff cannot sue for possession. The point for determination is what is the limitation in such a situation. I have just said that there is no stipulation in the said agreement when the defendants would allegedly vacate the land and hand over the possession to the plaintiff. In these circumstances, the cause of action started arising to the plaintiff on 30.3.1972 itself, as there is no title in favour of the plaintiff. Therefore, the suit of the plaintiff ought to have been instituted within three years. It will remain only a suit for declaration and the suit would be instituted upto 30.3.1975. But the suit has been instituted on 9.4.1975. An effort was made before the Courts below by the plaintiff by stating that he could file the suit within 12 years from the date of the agreement and, therefore, Article 64 of the Limitation Act, 1963 is applicable. There is a fallacy in the plea of the plaintiff. Article 64 will come into play if a party files a suit for possession of immoveable property based on previous possession and not on title and in such a situation the suit can be instituted within 12 years from the date of his dispossession. Under Article 65 of the Limitation Act, the suit can be instituted within 12 years for possession of immoveable property on the basis of title. In this case both the situations are not covered. Of course, the plaintiff has labelled his suit for possession but on the basis of compromise deed Ex. P1 dated 30.3.1972. His previous possession with regard to the suit property is not established nor it is his case. Rather the case of the plaintiff is that the property in dispute was in the possession of the defendants, who agreed to deliver the possession to the plaintiff on the basis of compromise. Meaning thereby that the plaintiff wanted the enforcement of the agreement and in these circumstances he will have come to the Civil Court within 3 years from the date of cause of action, which is agreement itself dated 30.3.1972. Before the first Appellate Court a plea was taken that some days must have been taken for the parties to vacate the land standing in the name of one party and earlier in possession of the other party, so that a margin of at least 10 days should be given, this is only a conjecture and surmises. In this view of the matter, the first Appellate Court has given cogent reasons as against the reasons of the trial Court in para No. 10 of the impugned judgment that the suit of the plaintiff was barred by limitation and it will be useful for me to reproduce para No. 10 of the judgment of the first Appellate Court as under :

"10. On issue No. 3, the learned trial Court has held that the suit was barred by time. The learned trial Court has taken the view that cause of action accrued to the plaintiff in the year 195253 when separate khewats were allotted to the parties during consolidation and since the suit was filed in the year 1975 i.e. about 22 years of the said time it was time barred. The learned Counsel for the plaintiff has argued that the whole approach of the learned trial Judge was wrong. He has argued that cause of action arose to the plaintiff some time after 30.3.1972 when the defendants carried out a part of the agreement recorded in Ex. P1 and refused to carry out the remaining part of the agreement. To this extent, I agree with the learned Counsel for the plaintiff. The sine qua non in this case was the agreement dated 30.3.1972 allegedly brought about by a congregation of different villages. It is from this date that the cause of action arose to the plaintiff. It is this agreement which the plaintiff seeks to enforce. Therefore, the starting point of limitation would be the date of agreement which is dated 30.3.1972. It is not given out in the plaint as to when a part performance of the agreement was carried out. As such 30.3.1972 has to be taken as the starting point of limitation. In this case, even if the whole of the agreement were to be accepted, no title in favour of the plaintiff would be created by this agreement so that the case would not fall under Article 64 of the Indian Limitation Act, 1963, rather it would be covered by Article 58 of the Act which prescribed a period of three years from the date when the cause of action accrued to the plaintiff. The cause of action accrued to the plaintiff on 30.3.1972 while the suit was filed on 9.4.1975. Looked from that angle, the suit is barred by time. The learned Counsel for the plaintiff has argued that some days must have been taken for the parties to vacate the land standing in the name of one party and earlier in possession of the other party so that a margin of at least ten days should be given. But things cannot be decided on the basis of conjectures only. This submission made on behalf of the learned Counsel for the plaintiff is hereby repelled and findings of the learned trial Court on issue No. 3 are affirmed although for different reasons."

With regard to issues Nos. 1 and 2, both the Courts have gone against the plaintiff. The case set up by the plaintiff is on the basis of compromise Ex. P1. Let us first assume for the benefit of the plaintiff that this compromise was executed between the plaintiff and some of the defendants. Admittedly, it is proved on the record that defendants Nos. 4, 5 and 7 were not present in the Panchayat. The case set up by the plaintiff in the Court is that defendant No. 3 had given the undertaking on their behalf. It is also proved on the record that as on 30.3.1972 the names of defendants Nos. 4, 5, 6 and 7 had been recorded as owners in the part of the khewat which was earlier allotted to defendant No. 3. In these circumstances, any compromise allegedly made by defendant No. 3 on behalf of defendants Nos. 4, 5 and 7 would not bind his sons nor those sons were bound by the terms of compromise Ex. P1 by their act or conduct. When these three defendants did not know the terms of compromise Ex. P1, how they can bind themselves. However, the compromise Ex. P1, as I stated above, according to the plaintiff, is a transfer of title. The document is neither stamped nor registered and for that reason no title passes to the plaintiff and it has to be inferred that the ownership vests with defendants Nos. 4, 5 and 7. The plaintiff is not filing a suit for specific performance. It has been rightly observed by the first Appellate Court that agreement Ex. P1 suffers from inherent difficulties. Also the relief could not be granted to the plaintiff because a reading of the compromise Ex. P1 would show that there is no mention of any particular killa number. A relief which cannot be executed cannot be granted and should not be granted to a party. In this view of the matter, I again do not see any infirmity in the reasons advanced by the first Appellate Court as contained in Paras Nos. 17 and 18 of the judgment, which are reproduced as under :

"17. Now the question arises as to whether the terms recorded in Ex. P1 can be given effect to through a decree of this suit. Defendants Nos. 4, 5 and 7 were not present in the panchayat. According to the plaintiff, defendant No. 3 had given an undertaking on their behalf. On the relevant day i.e. 30.3.1972, these defendants were recorded as owners of a part of the khewat earlier allotted to defendant No. 3. Therefore, any compromise at their back would not bind these defendants. Faced with this situation, it was argued by the learned Counsel for the plaintiff that by their own conduct defendants Nos. 4, 5 and 7 were bound by the terms of Ex.P1 because they had vacated a part of the land allotted to the plaintiff during the consolidation. That may be so. But there is no evidence on the file that they knew all the terms of Ex. P1 and they had bound themselves with those terms. Secondly, agreement Ex. P1 involves transfer of title. This could be done through a registered deed and a mere suit for possession would not lie because the title still subsists with the defendants and it has not been transferred to the plaintiff. Thirdly, it is a mere suit for possession and not a suit for specific performance of contract. Under these circumstances, I am of the view that agreement Ex. P1 suffers from basic maladies which are fatal for the case of the plaintiff. The agreement does not bind defendants Nos. 4, 5 and 7. For these reasons, I am of the view that notwithstanding that reversal of the findings of the learned trial Court regarding the cultivation of the land in the manner alleged by the plaintiff and the agreement, I am of the view that the plaintiff has failed to prove that he is owner of 136/313 share of the disputed land or that he is entitled to the possession thereof. With these observations, the findings of the learned trial Court on issues Nos. 1 & 2 are discussed and left as such.

A queer feature of the case is that the plaintiff has sought possession of particular killa numbers. In document Ex. P1 there is no mention of any particular killa number. It is not understood as to how the plaintiff could seek possession of the particular killa numbers when he does not alleged in the plaint that these particular killa numbers were agreed to be transferred to him. For this reason, I find a defect in the suit of the plaintiff."

Thus, the gist of my above discussion is that agreement Ex. P1 has not created any right, title or interest in the plaintiff, it does not bind defendants Nos. 4, 5 and 7; it is a vague document; the subjectmatter of the agreement is not deciferable; it is not a suit for specific performance; the cause of action arose to the plaintiff, if any, on 30.3.1972 itself and not thereafter; the suit ought to have been filed on or before 30.3.1975 and Articles 64 and 65 of the Limitation Act are not applicable in this case, rather either Article 58 or Article 113 would apply.

Resultantly, I do not see any merit in this appeal and dismiss the same with no order as to costs.