High Court of Punjab and HaryanaRSA/847/2023allowed

Shakuntla Devi v. Partap Singh And Others

2024-05-17Mr. Justice Anil Kshetarpal34 pages

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#)4 ">The plaintiff in the case in hand failed to prove her title. Perusal of decree dated 08.03.1979 in Civil Suit No. 106 of 1979 titled "Ram Singh Versus Sheo Lal", would reveal that the same was in respect of land measuring 11 Kanal 14 Marla situated in the revenue estate of village Bawal. Therein, Ram Singh had claimed himself to be owner in possession of land comprised in Khewat No. 123 min, Knatoni No. 1411min. Mustatil No. 105, Kila No. 23 (0114) and Mustatil No. 121. Kila No.3 (610) and 8 min Uttar (510) through a family settlement. Same was decreed as per compromise Ex. CX. However, for reasons best

known to the plaintiff, the said compromise Ex. CX has not been placed on the record.

> After decreetal of suit titled "Pehlad and others Versus Sheo Lal and another" and during the pendency of the appeal titled "Sheo Lal Versus Pehlad and others", Ram Singn 1 suffered decree dated 22.11.1995 Ex.PW5/12 in favour of his wife Shakuntla Devi in respect of land comprised in Khewat No. 140, Khatoni No. 167, Rect. No. 105, Kila No. 23 (0114) and Rect. No. 121, Kila No. 8/1 (51 0), Kita 2, measuring 5 Kanal 14 Marla and Khewat No. 141, Khatoni No. 168, Rect. No. 121, Kila No. 3 (610) of its 11/12 share situated within the revenue estate of Bawal, District Rewari as per family settlement > Surender @ Sunder son of Sham Lal son of lilu son of Sheo Lal on the basis of GPA dated 22.05.2004 executed by Sheo Lal sold the property by various sale deeds. Said sale deeds were challenged by Sheo Lal by filing 3 separate suits all dated 08.10.2004. All the 3 suits were got dismissed as withdrawn on 06.10.2005.

> GPA dated 22.05.2004 has never been set aside by any competent Surender @ Sunder 1 great grandson Sheo Lal had alienated the suit property on the basis of GPA dated 22.05.2004.Sheo. Lal was owner of about 66 Kanals of land including the suit property. Same has till date not been partition. Sale of 4 Kanal of land(suit property) in specific Khasra No. 121/8 would be deemed to be sale of joint land. As stated hereinabove, Sheo Lal was owner of about 66Kanal of land including the suit property, therefore, sale deed on basis of GPA dated 22.05.2004 cannot be held invalid as total land was much more than sold. >Sheo Lal executed a family settlement dated 21.10.2004 (Ex. DW1/1)amongst his 4 grand sons namely Ram Singh, Rati Ram, Chiranji,Sham Lal, Suman (widow of Manoj son of Lilu son of Sheo Lal) and Shanti Devi widow of Lilu Ram.

>Shakuntla (plaintiff) filed an application (Ex. DW1/2) before the Tehsildar Bawal for sanctioning of mutation in her favour in respect of land comprised in Khewat No. 140, khatoni no. 167, Rect., No. 105, Kila, Khatoni No. 23 (0114) and Khewat No. 141, Khatoni No. 168, Rect. No. 121, Kila No. 3 (610) of its 11/12 share total measuring 6 Kanal 4 Marla as per judgment and decree dated 22.11.1995. Affidavits DW1/3 and DW1/4were filed by Ram Singh and Shakuntla respectively both dated 29.11.2007 (contents thereof have been reproduced in para No. 34 and 35 of the judgment dated 06.01.2023 passed by Addl. District Judge, Rewari).

>Accordingly, Mutation No. 9501 (Ex. DV/1/5) was entered and sanctioned in favour of the plaintiff excluding the land comprised in Rect. No. 121, Kila No. 8/1 (410)

> Mutation No. 16954 (Ex. DW10/7) was sanctioned in favour of Sheo Lal.(ExPW5/3) pursuant to judgment and decree dated 30.09.1995 > Name of Sheo Lal also came to be recorded in column of ownership in jamabandi for the year 199912000 (Ex. DW10/10) in respect of land comprised in Rect. No. 121, Kila No. 8/1 (410). However. the said revenue record was never got corrected by the plaintiff 1 Shakuntla by initiating any proceedings.

> Even in the 3 civil suits filed by Sheo Lal (Ex. DW1/15, Ex. DW1/18 andFx. DW1/21), Sheo Lal is claiming himself to be the owner in possession of agricultural land (fully detailed and described in para No.1 of the plaints) including land comprised in Rect. No. 121, Kila No. 8/1(41 0), situated within the revenue estate of Village Bawal, Tehsil Bawal,District Rewari.

>Defendant No. 3 to 6 and the purchasers through them are bonafide purchasers for valuable consideration. Instant suit is a case of extortion from the bonafide purchasers."

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# # )4 DIt is settled preposition of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title further not only is the onus of the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title The Ruling 2016 SAR (Civil) 1 is worth mentioning here. Relevant head note is given below for proper focus:

C1 Specific Relief Act, 1963 Sec. 34 Suit for declaration of title and possession 1 Burden of Proof1 It is a settled position of law that in suit for declaration of title and possession, the onus is upon the plaintiff to prove his title1 Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title".

The plaintiff/ appellant is deriving her title from her husband Ram Singh through collusive decree dated 2211111995 Ex. PW5/13 and Ram Singh is deriving

+ his title from his grandfather Sheo Lal through the judgment and decree dated 0810311979 Ex. PW 6/4. The basis of the above said decree is the statement of Sheo Lal and Ram Singh, before the court Ex. DW3/2 The statement of Sheo Lal & Ram Singh referred as under: 1 "States that we have compromised the matter. Compromise is Ex. CX, which is correct and accept and the same bear our signatures. As per compromise, suit be decreed and the parties be left to bear own expenses".

The decree dated 08103179 is based on the above said statement dated 06.03.79 more specifically on the compromise Ex. CX, but the said compromise has not been brought on the record. The finding of the court below in this regard are referred bellow:

No copy of compromise Ex. CX which formed the basis of decree in favour of Ram Singh has been brought on record. Even during the course of argument nothing was addressed from the side of plaintiff in this regard, enabling the court to presume that there no such document available on record of proceedings of the civil suit which led to passing of decree dated 08103179 in favour of Ram Singh The Perusal of the para No. 1 & 2 of the plaint titled as Ram Singh V/s. Sheo Lal. Ex. DW3/1 reveals that both the parties had categorically admitted the suit property as Joint Hindu Family Property. It is further admitted position that Sheo Lal was having four grandsons except Ram Singh plaintiff namely Rati Ram, Chiranji, Shyam Lal & Manoj, who were also members of Joint Hindu Family of Sheo Lal.

thus any decree passed in favour of Ram Singh depriving above said four grandsons on the basis of family settlement without their concurrence is void & invalid. The Relevant Rulings are detailed herein: i. 2011 (3) SRJ 224 (S.C) ii. AIR 1997 S.C 1333 iii. 2002 (3) CCC 19 (P & H) iv.

More so, Sh. Sheo Lal (since deceased) had executed and registered a family settlement registration No. 959, dated 2111012004 Ex. DW1/1 in favour of his grandsons which is duly signed by Sheo Lal & Ram Singh. Being signatory of the above said family settlement Ram Singh & other parties are also bound by the same.

The detail given in para (f) and schedule of the family settlement herein given below As settler is aged 102 years and he has love and affection with his grandsons and their wives (settlee no. 1 to 6) and they had taken care of him, So, keeping in view this fact, settler with the consent of his elder son Ram Singh had entered into family settlement as per which, a civil court decree has been passed in favour of Ram Singh qua 6 kanal 4 marla land, out of total land and the name of Ram Singh has been entered in the revenue record. Ram Singh had suffered a civil decree in favour of his wife Shakuntla qua said 6 kanal 4 marla land".

Schedule a(1) Ram Singh adjusted 6 Kanal 4 Marla given through Civil (ii) Shakuntla Court decree stated above.

And 6 Kanal 16 Marla detailed in Schedule No. 1 of the Family Settlement total measuring 13 Kanal.

b Rati Ram:

The land detailed in measuring 13 Kanal schedule 2 total c. Chiranji The land detailed in schedule 3 total measuring 13 Kanal.

d. Shyam Lal:

Adjusted the land total measuring 6 Kanal 14 Marla sold by Surender @Sunder s/0 Sh Shyam Lal through Power of Attorney of Sheo Lal to appellants and the land measuring 6 Kanal 6 Marla detailed in schedule 4 total measuring 13 Kanal

e. Suman Land detailed in schedule 5 of the family settlement measuring 13 Kanal.

f. Shanti Devi:

Land measuring 1 Kanal 16 marlas detailed in schedule 6 Pertinently the above said family settlement was acted upon and accordingly defendant No. 2 filed an application Ex. DW1/2 before Tehsildar Bawal praying therein to enter and sanction, the mutation of agricultural land comprised in Khewat No. 140, Khatoni No. 167, Rect. No. 105, Killa No. 23 (0114), 11/12 share of Khewat No. 141, Khatoni No. 168, Rect. No. 121, Killa No. 3(61 0), measuring 5 Kanal 10 Marla total measuring 6 Kanal marla in terms of decree dated 22.11.1995 passed by Sh.M.L.Gulati, ASSJ, Rewari in her favour The relevant contents of the application are given below "That I am owner of property comprised in khewat no. 140. khatoni no. 167, rect. no. 105, killa no. 23(01

14) and khewat no. 141, khatoni no. 168, mustatil, no. 121, killa no. 3(610) 11/12 share i.e. 5 kanal 10 marla total measuring 6 kanal 4 marla, as per order dated 22.11.1995 passed by Sh. M.L. Gulati, ASSJ, Rewari". The compliance of above1said decree and order has not been done in the documents, so the mutation may be entered in my favour.

Moreover, along with the application, two duly sworn affidavit one of defendant No. 1 Ram Singh Ex. DW1/3 and second of the plaintiff Ex. DW1/4 before Executive Magistrate, Bawal dated 2911112007 were also filed in support of the above said application by Shakuntla.

The contents of the affidavit of Ram Singh DW 1/3 before Executive Magistrate Bawal dated 29.11.2007 is herein referred:

That my wife had moved an application for entering mutation in her favour.

That mutation be entered regarding the land, except Khewat no. 166, Khatoni no. 191, mustatil no. 121, killa no. 8/1, measuring 4 kanla, for which, 1 have no objection".

The contents of the affidavit of Shakuntla Devi Ex. DW1/4 before Executive Magistrate Bawal dated 29.11.2007 is herein referred:

"That I had moved an application for entering the mutation. That mutation be entered regarding the land, except Khewat no. 166, Khatoni no. 191, mustatil no. 121, killa no. 8/1, measuring 4 kanal, for which, I have no objection.".

Accordingly, mutation No. 9501, Ex. DW1/5 was sanctioned in favour of plaintiff Shakuntala Devi excluding the land in dispute comprised in Rect. No. 121, Killa No. 8/1(410). From the above said facts and circumstances it can safely be concluded that the plaintiff miserably failed to prove her title and the title of her transferor, so the suit of the plaintiff deserves dismissal by accepting this appeal.

The great grandfather1in1law of the plaintiff, Sh. Sheo Lal also executed and registered Power of Attorney and will dated 2210512004 in favour of his grandson Sunder Surender and in terms of the same, the said Sunder Surender had sold the land comprised in Rect. No. 121, Killa No. 8/1(410) to respondents/defendnats through registered sale deeds. The defendant No 1 taking undue advantage of the old age and illiteracy of Sh. Sheo Lal got filed civil suit Ex. DW1/15, Ex. DW1/18 & DW1/ 28 on 0811012004 against the Sunder Surender and vendors of defendant/respondent and respondents. The above said suit filed in the name of Sh. Sheo Lal were withdrawn by Sheo Lal on 0611012005 by recording statement on oath before court, the certified copies of the said orders are Ex. DW1/27 Ex.

DW1/28 & DW1/29 thus the power of attorney in favour of Sunder Surender and subsequent sale deed in terms of his power of attorney are genuine and correct. The criminal case was also resulted into acquittal by holding the power of attorney as genuine document. Ex.

When the civil suit has been withdrawn by Sheo Lal against his grandson regarding execution of sale deeds, then it is proved that the intention of Sheo Lal and it is proved that he executed the power of attorney for execution of alleged sale deeds, The accused also produced the attested copy of sale deeds Ex. D14 and Ex. D15 which shows that his grandfather also executed the sale deed on 111081 2003 and 81912003 and the present accused being grandson become a witness. The alleged sale deed was executed in the year 2003. Hence, it is proved that the complainant had faith in his grandson Surender Sunder who went at Delhi for execution of power of attorney and selling his property as per his own consent. Now the complainant had expired. There is no fraud committed by accused with Sheo Lal complainant and the same has not proved by the prosecution against the accused.

The findings of the trial court to the effect that in terms of compromise Ex. PW5/2. Hon'ble High Court recognized the rights of Ram Singh is totally wrong and perverse for the following reasons: A) The compromise decree binds the parties only and does not operate as resjudicata. The ruling 2016 SAR (C)11 is worth mentioned here and the relevant head note A (v) is worth mentioning here.

(a) (v). The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. B) That the validity of decree was not under challenge and the crux of the dispute in that suit hinges around that Sheo Lal was not owner of more than 4 Kanal after their purchase, therefore any transfer made by Sheo Lal more than 4 Kanal is not binding on them.

C) That vide order dated 1811012007 Ex. PW5/6 mentioned in para No. 24 of the judgment, the liberty was granted to the appellant Mahabir to established his right in appropriate proceedings like this suit. More So separate suit filed by Surender Sunder in the Court of Civil Judge (JD) Bawal is pending."

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# )4 D2. That plaintiff failed to prove his title. 8.3.1979 (Ex.pW6/4) Sheo Lal suffered consent decree of 5 kanal in favour of his grandson Ram Singh 22.11.1995 (Ex.PW5/13)1 Ram Singh suffered consent decree in favour of his wife (Plaintiff Shakuntla Devi). The aforesaid decree was passed on the basis of statement by Sheo Lal and Ram Singh which is Ex.DW3/2 and statement was that the suit can be decreed as per compromise Ex.CX which has not been produced in the court below by the plaintiff. Family settlement had been taken place between Sheo Lal and his grandsons etc.

21.11.2004 (Ex.DW1/1)1Registered family settlement had taken place. As per the family settlement it is clear that Ram Singh or his wife Shakuntla Devi was not owner of the land in question. Even there is affidavit of plaintiff before Tehsildar (DW1/4) dated 29.11.2007 that the land be mutation except the suit land in her favour Mutation no.9501 was sanctioned. Ex.DW1/2 application by Shakuntla (plaintiff) before Tehsildar that as per the decree dated 22.11.1995. She is owner of 6 kanal 4 marla land and the same be mutated in her favour. In aforesaid application suit property was not included.

Ex.DW1/3 dated 29.1.2007 affidavit of Ram Singh before Tehsildar that the land as per decree dated 22.11.1995 be mutated on the name of his wife Shakuntla (plaintiff) except the suit land. So, the family settlement has been acted upon and plaintiff has waived her right in the suit property."

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, )4 "(i) It is here submitted that in connected RSA no. 847 of 2023 which has arisen out of the suit filed by Shakuntla Devi challenging the sale deeds including under execution in the aforesaid ESA. Since, the suit filed by Shakuntla Devi was for

, declaration for challenging all the sale deeds done by Shoe Lal including the sale deed in favour of appellant1Meer Singh in the above noted ESA, hence this suit being of title is comprehensive enough to include the sale deed under execution in the above noted ESA and hence the judgment which may be passed in connected RSA would prevail upon the judgment in ESA as well therefore, RSA may be decided first as it's judgment shall direct bearing and impact upon ESA.

(ii)Sh. Sheo Lal had got 9 Kanal being 1/6th share out of 52 Kanal 18 Marla. He transferred 4 Kanal in favour of Ram Singh vide decree dated 08.03.1979 who transferred the same to Shakuntla vide decree dated 23.01.2012. Ram Singh and Shakuntla has submitted the affidavit in the suit out of which RSA No. 847 of 2023 has arisen, to the effect that they don't claim out of Kila no. 8/1 whereas claim of the appellant is from Killa no. 8/1,Shoe Lal sold 2 Kanal to Parhlad and Kartar etc. in this way the claim of the appellant is within share of Sheo Lal and as such the sale deed in favour of the appellant is legal and lawful and executable and thus the dismissal of the execution petition by the Executing Court and dismissal of the appeal by the Ld.ADJ is wholly erroneous and illegal.

The finding of the Ld. ADJ in connected RSA no. 847 of 2023 may kindly be taken as part of the arguments of the appellant.

(iii)That the Ld. District Judge erred in law in not allowing the additional evidence in the shape of Mutation no. 9501 dated 31.12.2007 and affidavits of objector and her husband Ram Singh which states that the objector has no claim with regard to the killa no. 8/1 by way of filing the affidavit which find mentioned in para no. 34, 35 and 36 of the Ld. Additional District Judge, Rewari vide judgment dated 06.01.2023 which is reproduced as under: "34. Furthermore, alongwith the said application, two duly sworn affidavits, one by Ram Singh (defendant no. 1) Ex.DW 1/3and second by plaintiff Shakuntla Ex.DW1/4 were also filed before the then Executive Magistrate, Bawal on 29.11.2007, in support of the said application by Shakuntla. The relevant portion of said affidavit of Ram Singh is produced here as under for ready reference:

* That my wife had moved an application for entering mutation in her favour.

That mutation be entered regarding the land, except Khewat no. 166, Khatoni No. 191, mustatil no. 121, Kila no.8/1, measuring 4 Kanal for which, I have no objection.

35The relevant portion of said affidavit of Shakuntla Devi(plaintiff) is also produced here for ready reference:

That I had moved an application for entering the mutation.

That mutation be entered regarding the land, except Khewat no. 166, Khatoni no. 191, mustatil no. 121, killa no.8/1, measuring 4 Kanal, for which, I have no objection.

36Thereafter, accordingly mutation 9501 proved as Ex.DW1/5 on lower record had been sanctioned in favour of Shakuntla Devi (plaintiff) by excluding the land in dispute comprised in Rect. No. 121, Killa no. 8/1 (410) and hence from the above said facts and circumstances, it can safely be concluded/held that the plaintiff Shakuntla Devi has miserably failed to prove her title and the title of her transferor, therefore. the suit of the plaintiff is liable to be dismissed."

The entire evidence has come in the suit filed by Shakuntla out of which the present RSA no. 847 of 2023 has arisen.

(iv) That suit land is the ancestral property of Sheo Lal and he holds 53 Kanal 18 Marla in total ancestral property in which he has got 1/6th share as coparcener and as such he has got 9 Kanal share in same and he could transfer only 9 Kanal whereas as per the allegations of the objector he transferred 2 Kanal in favour of Parhlad and Kartar and 4 Kanal in favour of Ram Singh who allegedly suffered the decree in favour of his wife Shakuntla/ objector, hence in this way also there remain still 3 Kanal with Sheo Lal and as such the land subject matter of the decree dated 25.02.2008 is within the share of Sheo Lal and he could sale out the same and as such, the decree dated 25.02.2008 is executable. Therefore, the sale deed has been rightly executed in favour of the

appellant/decree holder and only symbolic possession is to be taken as the decree holder had already constructed the shop over the part of the suit property.

(v) That as have been rightly observed by the Courts below that that the obiections filed by Shakuntla are collusive with the Ram Singh, who is husband of Shakuntla. In fact, Ram Singh the hushand of the respondent no. 3 filed the objections which were dismissed vide order dated 20.10.2010 and even the appeal preferred before the Ld. District Judge, Rewari was also dismissed vide order dated 19.05.2011 and revision filed before the Hon'ble High Court was also dismissed vide order dated 20.05.2011. Thereafter, the objector Shakuntla has filed the objections which are devoid of merit, as the decree dated 30.09.1995 does not create any right, title and interest in favour of objector Shakuntla and similarly the decree dated 08.03.1979 also does not create any title in favour of Ram Singh.

(vi) That Ram Singh and Shakuntla were very well aware with regard to the proceedings of suit for specific performance in which decree for specific performance was passed on 25.02.2008 they never filed any application for becoming party therein, therefore, also the objections of Ram Singh and Shakuntla does not lie at this stage.

(vii) That without prejudicing all other submissions, it is submitted that there arrived a family settlement bearing Vasika no. 959dated 21.10.2004 executed by Sheo Lal and family members with respect to the entire property and the sales which have been made by Sunder @ Surinder as G.P.A. of grandfather Sheo Lal, were to be deducted from the share of Sham Lal and as such Sheo Lal remained owner of the suit property as the land sold by Surinder has been taken from the share of his father Sham Lal, hence the claim of Shakuntla and Ram Singh is falsified from the said family settlement and such the decree dated 25.02.2008 is executable.

The finding on basis of family settlement in para no.32 & 33 of the judgment of Ld. Additional District Judge dated 06.01.2023 which is impugned in connected RSA no. 847 of2023.

(viii) ) That Shakuntla has filed suit on 08.08.2011 bearing case no 153 which is exhibit A116, therefore, the Ld. Court below ought to have ordered sine die the execution proceedings till the final decision of the said suit which his pending in the Civil Cout at Rewari. The true typed copy of the said plaint (Ex.A1

16) is enclosed herewith as Annexure A12.

(ix) That mere filing of the objections in the proceedings of earlier litigation and appearing as witness in the earlier litigation does not infer that the appellant has played fraud upon the courts by filing the civil suit for specific performance and the decree dated 25.02.2008 has been obtained fraudulently The true typed copy of the judgment and decree dated 25.02.2008 is enclosed herewith as Annexure A13. (x) That the appellant has got a right enforce his agreement to sell by filing the suit for specific performance, therefore, protecting his right in this manner by the appellant cannot be said to be the fraudulent act on part of the appellant."

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/ , )4 DAs per statement of the defendant the suit of the plaintiff is decreed as prayed for without any order as to costs. Decree sheet be drawn and the file be consigned to the record room."

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/ , )4 DSuit for declaration to this effect that the plaintiff is the owner in possession of agricultural land comprised in khewat No.123 Kin Khatoni no.141 Min Mustail No.105, Killa no.23(0114) and Muststil no.121 Killa No.3(61

0) and 8 Min Uttar (510) measuring 11 kanals 14 marlas which is stiuated in the revenue estate of village Bawal Tehil Bawal through family settlement and the defendant has no right in the said land.

Plaint presented on the 23rd day of February, 1979. Value for the purpose of court fees:

Fixed Rs.25/1 Value for the purpose of Jurisdiction: Fixed Rs.200/1 This suit coming on this day for final disposal before me in the presence of Shri Yudhvir Singh counsel for the plaintiff and Shri Tej Singh Advocate for the defendant. It is ordered that the suit of the plaintiff is decreed as prayed for without any order as to costs." $!

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, )4 DThe plaintiff has filed this suit for declaration to the effect that he has become owner in possession over the suit property as detailed in para No.1 of the plaint by way of family settlement.

On notice, the defendant while coming present in the court filed admitted written statement admitting thereby the claim of the plaintiff over the suit property in toto. The statements of the parties have been recorded in the court separately.

In view of the above circumstances, the parties are not at issue. Hence the suit of the plaintiff is hereby decreed subject to charge remaining intact. Both the parties are left to bear their own costs. Decree1sheet be prepared. File be consigned to record room."

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