High Court of Punjab and HaryanaRSA/1129/1989allowed

Piara Singh v. Lachhman Singh And ORS.

2024-04-18Mr. Justice Anil Kshetarpal14 pages

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* "In view of the above statement this suit is dismissed as withdrawn with no order as to costs. Documents be returned."

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"Respectfully Showeth:

:This is a defendant*appellants' appeal against a judgment of reversal.

#The first question of law pertains to the suit being barred by Order 23 Rule 1 (4).

* Having withdrawn the first suit without liberty to file a fresh one on same cause of action, the present suit is barred.

* Reference may be made to para 5 of the Trial Court's Judgment at Page 107.

* This has wrongly been reversed by the Lower Appellate Court in Paras 9 & 10 at Page 27.

$%&'( #Both suits for 22K 19M only i.e. land covered by the two sale deeds made by Chet Singh in favour of Piara Singh only. * Chet Singh had also left more land (not covered by the sales) as mentioned in the previous Written Statement Ex. D*4 ( at Pg. 95 of

: the record) * Para 3.

#Both suits based on challenge to the 2 sale deeds Ex. D*1 & Ex. D*2.

* Inheritance has no relevance till sale deeds are set*aside. * In both the suits, the sale deeds had to be set*aside before any relief could be granted to the plaintiff.

* So, 2' suit barred. * reference may be made to page 7 of these written submissions.

* Reliance on )*++

*,+ is wrong.

)*++

*,+ -. (Ali Muhammad V. Karim Baksh & ors.) (Para 17) * That was a case where a sale by a widow was challenged the ground sale is NOT binding after death of widow * declaration was sought on behalf of ALL revisioners.

* When the widow died, the suit was withdrawn. * H.C. held on death of widow, plaintiffs sought possession * on their own behalf.

* Reference may be made to Page 44 Col. 1.

* In present case in both cases, plaintiff has to prove the 2 sale deeds are bad*inheritance, makes no difference. * Fully covered by Order 23 Rule 1 (4) # ('

: Both sales Ex. D*1 & Ex. D*2 are valid.

i) The property is NOT ancestral. (In fact, it has to be shown it is coparcenary) * To be co*parcenary it has to pass through 3 generations * here there is no such evidence.

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# -.) (Kamlesh Devi V Mangat Ram & Ors.) (Case of gift) (ii) Coparcenary nature to be proved by documentary evidence that inherited by father to son to grandson /0))4)# - 356, -./ (Saroja V. Santhilkumar & Ors.) (Para 12) * Here, there is no such evidence.

/0)14+# 6/)4

# -.+ (Kulwant Singh V. Harbhajan Singh & Ors.) (Paras 4 & 5) * Property to be proved to be ancestral by documentary evidence.

* No presumption property is Joint Family Property. /0)04))#88666 -., (Sameer Kumar Pal & Anr. V.

(Paras 10 & 11) Sheikh Akbar & Others) * Lower Appellate Court holds to the contrary at page 33 top and at page 41 top.

* No presumption property is Joint Family Property. (iii) Only thing proved in the present case is gift from Ganda Singh to Chet Singh * then sale by Chet Singh to Piara Singh.

* It is essential to prove that property was co*parcenary in hands of Ganda Singh to hold it to be ancestral. * No such evidence

; )*90 +,5 -.5 (Smt. Ram Kali & Anr. V.

(Paras 3 & 6) Pardip Kumar & Others) * Where it was held that land not ancestral in hands of vendor who sold to son * it cannot be challenged. )*5+8,*5 -.1 (C.N. Arunachala Mudaliar V. C.A. (Paras 11 to 15) Muruganatha Mudaliar & Anr.) * Merely because property has come by gift from ancestor will not make property ancestral.

* It has to be proved to be ancestral in the hands of donor Reliance on 1933 Lah 539 is wrong.

)*++

5+* -.& (Pars Ram V. Kher Singh & Ors.) * This was a case of a gift of ancestral property. Gift does not make it non* ancestral.

Similarly, -.8 )*/1

)6) (Page 41) (Khizar Hayat & Anr. V. Allah Yar Shah) * Reference may be made to top page 41.

* Gift of non*ancestral will not make it ancestral. (iv) The onus is on the plaintiff to show it is ancestral * not the other way around.

* Reference may be made to top of page 41.

(v) Total misreading of written statement, Ex. D*4 * paras 1 & 5.

* Reference may be made to the bottom of page 33 of the paper book.

* Actually, written statement says "exclusively owned by Chet Singh"

# : The Lower Appellate Court wrongly holds sale deed to be without consideration.

* Reference may be made to para 14 at page 41 of the paper book.

*This is totally contrary to the facts.

4# In earlier suit against Chet Singh & Piara Singh * Both had said money received.

* Reference may be made to the written statement Ex. D*4 at pg. 95 of the record * para 3.

4# Ex. D*2 * recites Rs. 10,000/* paid before Sub*Registrar 4# Ex. D*1 * says Rs. 22,000/* already received. * No evidence that these recitals are incorrect. It is therefore, respectfully prayed that the judgment and decree of the Lower Appellate Court be set*aside, the suit of the plaintiffs*respondents be dismissed and the present appeal be allowed with costs throughout.

It is also prayed before this Hon'ble Court that this Court may pass any order which it may deem fit in the facts and circumstances of the present case, in the interest of justice."

-!"

"1. That Ganda Singh had ancestral property which he gave

< to Chet Singh who was his only son and thus the land in the hand of Chet Singh was ancestral in nature.

2. That Chet Singh had four sons namely Lachhman Singh, Kundan Singh, Tara Singh and Piara Singh.

3. That Chet Singh executed one sale deed of 8K*9M in favour of Piara Singh on 19.11.1982 (Ex. D*1). Similarly, Chet Singh executed second sale deed in favour of Piara Singh of 14K* 10M on 28.03.1984. Both these sale deeds were without any consideration and as per the recital in the sale deeds itself it was clearly mentioned in the first sale deed that he will take the amount for the daily expenses from his son and in the second sale deed it was mentioned that he has taken the amount for his expenses. Thus, nothing has been paid which can be termed as consideration for getting these sale deed executed.

4. That three sons namely Lachhman Singh, Kundan Singh and Tara Singh filed Civil Suit No.614 of 1984 wherein the said sale deeds were challenged, under a suit for declaration which was filed against their father Chet Singh and brother Piara Singh.

During the pendency of this civil suit Chet Singh expired in October, 1984. The said civil suit was then withdrawn by the three sons on 14.11.1984 by making a statement that the present suit be allowed to be withdrawn to file afresh, which the Hon'ble Court allowed vide order dated 14.11.1984 (Ex. D*5).

5. That the three sons then filed Civil Suit against the Piara Singh which was now a suit for possession of land measuring 22K*19M which was illegally given by Chet Singh to Piara Singh under the sale deeds when the said land was ancestral in nature and the same could not have been given by Chet Singh. On the pleading of the parties issues were framed on which the parties led their evidence.

6. That to prove the issues of the onus of which was on the plaintiff, they produced PW*1 Lachhman Singh, PW*2 Basant Singh and PW*3 Charan Singh. A copy of the mutation No.769 dated 18.08.1965 was produced as Ex. P/2 which proved the fact that a family partition was made between Chet Singh and Basant Singh who was the son of Sundar Singh who was the brother of Ganda Singh. Pedigree table is Ex. P*4. Another documents Ex. P*3 is the copy of mutation No.294 dated 03.12.1947 vide which Ganda Singh on his verbal statement has gifted his land to his only son but in this document there is no recital to the effect that for giving the gift Ganda Singh intended to make Chet Singh as the absolute owner or free to dispose of the same in any way he liked. As such it was proved that the land was ancestral in nature and was not a self acquired property of Chet Singh.

7. That the defendant * Piara Singh produced DW*1 Gurdial Singh Deed writer, DW*2 Attesting Witness, and himself appeared as DW*3. From all the evidence produced the same was only with regard to the sale deeds executed by Chet Singh but nothing was brought to show that the land was self acquired and Chet Singh had full right to dispose of the same as he liked.

8. That the Ld. Trial Court dismissed the Civil Suit. The first issue though was framed initially that the suit is barred by

principle of res*judicate whereas the issue was changed to whether the suit is barred under Order 23 Rule 4 (b) CPC. This issue was decided against the plaintiffs while holding that it is between the same party regarding the same land. The main and the primary issue No.2 was also wrongly held that the land in dispute is not ancestral. The civil suit was dismissed vide judgment and decree dated 15.01.1987.

9. That aggrieved by the illegal judgment decree passed by the Ld. Trial Court, the plaintiffs filed the appeal before the Ld. First Appellate Court. The Ld. First Appellate Court vide its judgment and decreed dated 11.03.1989 accepted the appeal and set aside the judgment and decreed passed by the Ld. Trial Court and held that the land be ancestral Co* parcenary property, Chet Singh was entitled to 1/5th share which he could gift or sale and thus granted the plaintiff the decree of possession to the extent of 3/5th share in the suit land and remaining 2/5th share to Piara Singh * Defendant No.1.

10. That during the pendency of the present appeal it was found that the finding given on issue No.1 by the Ld. Trial Court was illegal as no such issue was framed by the Court. As such while recasting the issue No.1 as "whether the suit is barred under Order 23 Rule 1 CPC? OPD" The Ld. Trial Court was asked to give fresh finding on the said issue. The Ld. Trial Court after considering the all the aspect at this stage vide its order dated 24.08.1988 returned the finding of this issue against the defendant and in favour of the plaintiff. As such now in the present RSA the said issue is not under consideration as though the same was against the defendant but the judgment was in his favour and this issue was never challenged in appeal and therefore cannot be taken up in regular second appeal.

11. That issue No.2 as to whether the land was ancestral, the Ld. Appellate Court carefully perused the documentary evidence i.e., Ex. P*2 which legally shows that family partition was made between Chet Singh and Basant Singh which proves that the land now in dispute fell in the share of Chet Singh. Thus, it amply proved that the land is ancestral further it has also been recorded by the Ld. Appellate Court that Piara Singh * defendant as DW*3 did not claim that the suit land was not ancestral in the hands of Chet Singh. Even in the previous suit filed when the written statement was filed it was not pleaded by Chet Singh or Piara Singh that it was self acquired property of Chet Singh. Rather Basant Singh PW*2 is the son of Sundar Singh and said Sundar Singh was brother of Ganda Singh vide pedigree table Ex.

P*4 and the family partition made between Chet Singh and Basant Singh and thereafter Ex.P*2 is the copy of the mutation which shows the share of land after family partition which fell in favour of Chet Singh. Further, Ex. P*3 which shows that Ganda Singh made oral gift to Chet Singh there also there was nothing to show that Ganda Singh by such oral gift was making Chet Singh as the absolute owner, free to dispose of the same in any way he liked. Under these circumstances and evidence the findings of issue No.2 of the Ld. Trial Court was reversed by the Ld. Appellate Court and held the suit land was ancestral co*parcenary property in the hands of Chet Singh qua his son.

12. That the issue with regard to sale deeds was also

considered by the Ld. Appellate Court and it was found from going through the sale deeds which were Ex. D*1 and D*2 that there is no evidence that anything was ever paid to Chet Singh by the defendant * Piara Singh and thus it was held that the sale in favour of the defendant was without consideration and legal necessity and not binding upon the plaintiffs.

13. That the Ld. Appellate Court while accepting the appeal has nowhere set aside the sale deed as those were never challenged in the civil suit which was for possession of the land measuring 22K*18M and held that the land being ancestral property Chet Singh was having 1/5th share and thus the sale extent to 4/5th share is void and granted the plaintiffs decree of possession to the extent of 3/5th share in the suit land. Thus, the judgment and decreed passed by the Ld. First Appellate Court is absolutely legal and does not suffer from any illegality or perversity and is therefore is required to be upheld and the regular second appeal filed by the appellant be dismissed."

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(b) withdraws from a suit or part of a claim without the permission referred to in sub*rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject*matter or such part of the claim." / / ( ! <=7 +*/?

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%% 7 !* "Rule 1, Order 23, Code of Civil Procedure empowers the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject*matter of that suit on such terms as it thinks fit. The terms imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject*matter that was in litigation in the, previous suit. The expression "subject*matter" is not defined in the Civil Procedure Code. It does not mean property.

That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject*matter of the second suit is the same as that in the previous suit. Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title. In the first suit the cause of action was the division of status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession.

In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family.

of his title to the suit properties, arose on the death of his adoptive father 'and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent even which conferred certain rights on him. Mere identity of some of the issues in the two suits does not bring about an identity of the subject matter in the two suits. As observed in Rakhma Bai v. Mahadeo Narayan, the expression "subject matter" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed.

In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis C.J. in Singa Reddi v. Subba Reddi, that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit."

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