High Court of Punjab and HaryanaRSA/772/1994allowed

Sukhmandar Singh & ORS v. Jangir Kaur & ORS

2024-04-03Mrs. Justice Anita Chaudhry16 pages

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1. Brief facts of the case:- 1.1 This is the plaintiff's second appeal against the concurrent judgments passed by the courts below while dismissing their suit for the grant of decree of possession with respect to land measuring 177 kanals 15 marlas.

1.2 ' & & (&)( , alongwith the following family tree is required to be noticed:- Deva Singh _____________________________|_____________________________ | | | | Hazura Singh Bishan Kaur Kakkar Singh Sher Singh | @ Bishno | Natha Singh Buta Singh (plaintiff no.1) | Labh Singh (plaintiff no.2)

1.3 Smt.Bishno alias Bishan Kaur was owner of the property. Sh.Natha Singh and Sh.Labh Singh, the plaintiffs, filed a suit for the grant of decree of declaration that in a family settlement the property has fallen into their share against Smt. Bishno. She conceded to the claim of the plaintiffs resulting in judgment and decree dated 23.05.1985. However, the court passed the following brief order, the operative part whereof reads as under:- "Heard. A collusive decree passed. No costs. Decree-sheet be prepared and file be consigned." 1.4 Sh.Sukhdev and Smt. Jangir Kaur filed a civil suit no.471 dated 13.08.1985 for the grant of decree of permanent injunction against Sh.Natha Singh, Sh.Labh Singh and Smt. Bishno. In that suit, the plaintiffs claim themselves to be in possession of the suit land as tenants under Smt. Bishno. Defendants no.

1 to 3 contested the suit claiming that the plaintiffs in that suit were not in possession and previously defendant no.3 Smt. Bishno was the owner and now defendants no. 1 and 2 are owners thereof. It was alleged that even if the land was given on lease for a particular year, after expiry of the period, the plaintiffs could not claim to be in possession as lessees. In that suit, the following issues were settled by the trial court:- "1) Whether the plaintiffs are in possession of the suit land under defendant No.3, if so its effect? OPP. 2) Whether the plaintiffs are entitled for injunction prayed for? OPP.

3) Whether the plaintiffs have no locus standi to file the suit? OPD.

4) Whether the plaintiffs have no cause of action? OPD.

5) Whether the suit is maintainable in the present form? OPD.

6) Whether the defendfants are in possession of the suit land as owner? OPD.

7) Relief."

1.5 The trial court held that from the perusal of the Jamabandis, it is proved that the plaintiffs are in possession as lessees. The court also found there is an entry in the revenue record to the effect that defendant no.1 and 2 namely Sh.Natha Singh and Sh.Labh Singh have become the owners. Ultimately, the court held that the plaintiffs are in possession of the suit land but no more under Smt. Bishno. Thus, the plaintiffs' suit was decreed and the defendants were restrained from dispossessing the plaintiffs from the suit land otherwise than in due course of law. Thereafter on 16.07.1987 Sh.Natha Singh and Sh.Labh Singh filed a suit for possession with respect to land measuring 177 kanals 15 marlas. Smt. Jangir Kaur alias Jagir Kaur filed civil suit no. 120 of 1988 to challenge the correctness of the judgment and decree passed on 23.05.1985, however, the same was withdrawn on 25.08.1989. The plaintiffs suit for possession was dismissed by the trial court, which in appeal has been affirmed by the appellate court.

2. Arguments adduced:- 2.1 * +( (, alongwih the requisitioned record.

2.2 Learned counsel representing the appellants has filed synopsis of the case, which reads as under:- ,

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# C#>7 I 2.3 On the other hand, learned counsel representing the respondents submitted that the decree passed on 23.05.1985 is not a speaking order and hence, not a decree in the eyes of law. He further submits that the defendants have perfected their title by way of adverse possession because the plaintiffs were held to be unauthorized occupants on 01.06.1987.

3. Discussion:- 3.1 This Court has considered the submissions made by the learned counsel representing the parties.

3.2 Upon careful study, the following reasons have been recorded by the First Appellate Court:- i) The judgment passed on 23.05.1985 shows non-application of mind.

ii) A judgment of the court should contain a concise statement of facts, points for determination and decision thereon alongwith reasons for such decision. However, the judgment dated 23.05.1985 fails to fulfill the aforesaid requirement.

iii) The judgment must contain the number of the suit, names and description of the parties alongwith their addresses and particulars of the claim and the relief granted. However, the decree has not been drawn in accordance with law and the rules.

iv) In the body of the decree, it is nowhere mentioned with regard to details of the land v) The plaintiffs have not placed on record copy of the plaint and written statement filed by Smt. Bishno in the suit filed in the year 1985 and it is impossible to connect the suit land with the decree passed in the year 1985.

vi) It is not the function of the court to presume that the decree dated 25.03.1985 pertains to the suit land.

vii) In the absence of the specific pleadings, it is not appropriate to accept the plaintiffs' case that they are heirs of Smt. Bishno.

viii) The defendants are in possession of the land for over 12 years which has not been denied and therefore, they have become owner by way of adverse possession.

3.3 The First Appellate court's reason no.1 overlooks Order XII Rule 6 of the 66#& 012 J6#6K7 which enables passing of judgments on the basis of admissions in the pleadings or otherwise at any stage of the suit. Basically, this is an enabling provision to dispose of the suit partially or absolutely in an expeditious manner. Once the court comes to a conclusion that the parties to the suit are not at issue or in other words, there is no dispute of facts between the parties which require adjudication, then the court can proceed to pass the judgment on the basis of admissions of fact. These admissions of fact can be made either in the pleadings or otherwise. Such judgment can be passed, at any stage, either on the application of

any party or on its own motion. Even disposal of a part of the suit is permissible under this order. In that context, the definition of judgment based upon admissions is required to be examined. The expression judgment has been defined in Section 2(9) CPC which means the statement given by the Judge on the grounds of a decree or order. Once the court comes to a conclusion that the judgment is required to be passed in accordance with Order XII Rule 6 CPC, recording of detailed reasons for arriving at such conclusion is not mandatory, though is ideally required. However, in the subsequent proceedings, the court is not expected to ignore a judgment on the ground of a technical reason, which is not mandatory. If we dissect the definition of the expression 'judgment' it means the statement given by a Judge on the grounds of a decree.

In a consent decree passed under Order XII Rule 6 CPC, the court is required to make only a statement to the effect that the parties are not at issue. That can be expressed by giving a concise form, which does not necessarily requires detailed reasons by the Judge. 3.4 Undoubtedly, the Presiding Officer, while passing the decree dated 23.05.1985, has used the expression collusive decree, however, in substance, this was a consent decree passed under Order XII Rule 6 CPC. The expression collusive involves secret and unlawful cooperation aimed at deceiving or giving an advantage over others. Hence, it was not appropriate for the Presiding Judge to use the word "collusive" while passing the judgment. However, this may be due to oversight or lack of appropriate word in the vocabulary.

the basis of consent. Smt. Bishno, during her lifetime, never questioned the aforesaid judgment. The defendants are not preferential heirs of Smt. Bishno. On the other hand, the plaintiffs are closely related to Smt. Bishno. Plaintiff no.1 is her brother's son whereas plaintiff no.2 is her brother's grandson whereas on the other hand, the defendants have failed to prove that they are having any preferential right over the plaintiffs. In these circumstances, the court is required to decide whether a small mistake by the court while passing the judgment should result in depriving the plaintiffs from a valuable right, which came to vest in them pursuant to the judgment passed by them. In my opinion, the answer would be in the negative. In a subsequent proceeding, the court is not expected to ignore the previous judgments only on procedural errors.

3.5 Similarly, trial court's reason no.2 is also not appropriate. Ideally, a judgment of the court is required to give concise statement of a case, however, when there is no quench for determination on account of admissions of fact, the court is not required to give detailed reasons. However, in a subsequent suit, before ignoring or setting aside the previous judgment, the court is required to find as to whether there are grounds to set aside a contract entered into the parties. A consent decree passed by the court is based upon a contract or an agreement arrived at between the parties in the facts of the case which is approved by the court. Such contract is not liable to be ignored unless the court finds any of the ground specified in the contract Act for ignoring or setting aside a previous contract, particularly when it has also been approved by the

court in its previous judgment. Moreover, it is not appropriate to overlook the judgment of the court for a small or insignificant procedural error, which do not go to the root of the case. 3.6 The First Appellate Court's reason no.3 is factually incorrect. A bare look at the decree passed by the court on 23.05.1985 Ex.A-2 would establish that the decree drawn by the court contains suit number, date of institution, decision, name and addresses of the party to the suit, description of the suit land involved in the suit and the claim and the ultimate order passed by the court. The expression decree has been defined by the CPC under Section 2(2) CPC which means a formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit.

Hence, the First Appellate Court has wrongly recorded that the decree does not contain the number of the suit, name or description of the parties and particulars of the claim and the relief granted. 3.7 Similarly, the First Appellate Court's reason no.4 lacks substance and is not sustainable because the decree as prepared by the office is ultimately signed by the Presiding Judge, which includes case number and all other details including description of the suit property. Hence, the decree has to be read in a comprehensive manner and should not only be confined to the body of the decree, which only contains the conclusion drawn. Moreover, before setting aside or ignoring a judgment of the court, the test to be applied is different and there is a requirement of passing the judgment.

to ignore the previous judgment on the ground that such judgment and decree is not an ideal judgment.

3.8 Similarly, First Appellate Court's reason no.5 is incorrect. It was the defendant, who was challenging the correctness of the judgment and decree passed by the court on 23.05.1985. Even if the plaintiffs did not file the copy of the plaint or the written statement of the previous suit, the defendants could have filed it. The First Appellate Court has erred while observing that it is not possible to connect the land in question, particularly when in the decree the detailed description of the suit land alongwith khewat, khatoni, khasra numbers and the name of the village where the land is located has been given. There was in fact no dispute between the parties with regard to the identification of the suit land. It was not appropriate for the court to make out a new case for the defendants. On the same reasons, the First Appellate Court's reason no.6 is also not sustainable.

3.9 Similarly, the First Appellate Court's reason no.7 is also not appropriate because the failure to get the land mutated does not adversely impact their substantive rights. The mutation is only for the purpose of upgradation of record and it does not in itself determines the rights of the parties.

3.10 The last reason assigned by the First Appellate Court is again perverse. Firstly, the First Appellate Court has overlooked that defendant no.3 in 1988 filed civil suit no.120 of 1988 to challenge the decree dated 23.05.1985, which was withdrawn on 26.08.1989. Secondly, before granting a decree for declaration that an unauthorized

person has become owner by way of adverse possession, the court is required to examine the date or the month or the year when the possession of the party became adverse. While granting declarative decree to the effect that some one has become owner by way of adverse possession, the court is required to examine the well known test laid down by the Supreme Court in Saroop Singh vs. Banto AIR 2005 SC 4407. The person claiming adverse possession is required to prove the following requirements:- i) on what date he came into possession ii) what was the nature of the possession iii) whether the factum of possession was known to the other party.

iv) how long is the possession continued.

v) his possession was open and undisturbed.

3.11 The continuation of possession during the pendency of the litigation is not considered as undisturbed possession. The permissible possession howsoever long cannot be the basis to grant adverse possession. In fact, the adverse possession implies that it commences from and is maintained against the right. In this case, the court overlooked that in the jamabandi for the year 1977-78, the possession of the defendants is shown as Gair Marusi and in column no.9, the entry is Gair Marusi Chakotedar, which implies that the defendant no.1 and 2 were inducted as tenants by the previous owner. Moreover, defendants no.1 to 3 in civil suit no. 471 dated 13.08.1985 themselves claim to be tenants under Smt.Bishno. Moreover, on a careful reading of the

judgment and decree passed on 01.06.1987, it becomes evident that the court arrived at a conclusion that defendant no.1 to 3 were in possession of the land as tenant under Smt.Bishno but not under the plaintiffs. However, the possession of the defendants no.1 to 3 cannot be termed as unauthorized occupants entitling them to claim title on the basis of the adverse possession. Moreover, none of the defendants have proved ingredients of the adverse possession while appearing in evidence. In fact, DW3 Jora Singh has admitted that Smt. Jangir Kaur defendant no.3 claimed that defendants are tenants on the land. Similar is the statement of DW4 Gurdev Singh. DW5 Smt. Jangir Kaur has admitted that she does not know in which capacity they are in possession of the property. 3.

12 It may be noted here that even in the absence of decree, the plaintiffs are proved to be natural heirs of Smt. Bishno. The relationship of Smt.Bishno is not disputed which stands corroborated by overwhelming evidence. Defendant no.3, although propounded the Will dated 15.06.1974, allegedly executed by Smt. Bishno in her favour, however, this issue was never pressed before the trial court.

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