High Court of Punjab and HaryanaRSA/6004/2014allowed

Gursewak Singh & ORS v. Baldev Singh & ORS

2023-08-02Mr. Justice Deepak Sibal19 pages

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Present:

Mr. G.S. Lalli, Advocate for the appellants.

Mr. Sapan Dhir, Advocate for respondent No.1.

Ms. Shrinkhla Singh, Advocate for Mr. Tushar Sharma, Advocate for respondent No.3 to 6, 11 and 12.

The correctness of findings of fact arrived at by the Courts below is challenged by the plaintiffs in this appeal. Their suit for grant of decree of declaration to the effect that late Sh. Krishna during his lifetime partitioned the entire agricultural land, which was further reiterated by another memorandum of partition dated 09.06.1977, and that, the parties are the separate owners in possession of the area allocated to them, has been dismissed by both the Courts below. At this stage, it would be appropriate to draw a family tree to ensure clarity, which is drawn as under:-

Partap Singh | Kishan Singh | −− Bachan Kaur | ------------------------- | | | Hardev Singh Gurdev Singh Baldev Singh | | | | | -------------------------- | | | | | | | | Gursewak Amarpal Jeet Kaur Nachhattar Kaur Harpal Sinder | Singh Singh Singh Kaur | |--Ajmer Kaur | | --------------------------- | | | | | Lal Singh Surjit Singh Jagroop Singh Balvir Singh Balvir Kaur 2.

In the considered view of the Court the following two questions require adjudication:- 1.

Whether unregistered memoranda of family settlement are inadmissible as evidence?

Whether a previous judgment passed in a suit seeking an injunction be considered as

in a subsequent suit seeking a declaration decree, unless the specific issue in question was directly and substantially contested in the previous suit and the pleadings of the first suit were never produced or proved?

The plaintiffs namely Sh. Gurdev Singh and Sh. Hardev Singh, sons of Sh. Krishan Singh claimed that late Sh. Krishan Singh during his lifetime allocated the specific shares amongst them, which was acknowledged in the memorandum of partition dated 14.09.1968. After the death of Sh. Krishan Singh, another memorandum of partition was executed

$ between the parties on 09.06.1977. Defendant No.1 and Sh. Baldev Singh have started resiling from the arrangement and consequently, the suit has been filed. On notice, the defendant contested the suit on the ground that the agreement dated 09.06.1977, being unregistered, is not admissible in evidence. It was asserted that no partition took place either on 14.09.1968 or on 09.06.1977. Defendant No.6 to 9 and 14 to 16 by filing the written statement claimed that they have purchased 6 kanals land vide sale deed dated 25.11.2002, from the plaintiff Sh. Gurdev Singh, Sh. Balvir Singh, Sh. Lal Singh and Sh. Hardev Singh.

From the pleadings of the parties, the following issues were culled out by the trial Court for adjudication:-

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The plaintiffs in the oral evidence examined Sh. Subhash Kumar, who identified the handwriting and signatures of the scribe Sh. Bindra Ban Sheori, scribe of memorandum dated 14.09.1968, PW-3 Sh. Harnek Singh, the marginal witness of memorandum dated 14.09.1968,

PW-3 Sh. Pritam Singh son of Sh. Mastan Singh, who identified the signatures of his father Sh. Mastan Singh on memorandum dated 09.06.1977, PW-4, Sh. Senapati Rai son of Sh. Ram Nath (scribe), who proved the hand writing and signatures of his father Sh. Ram Nath, scribe of the memorandum of partition dated 09.06.1977, PW-5 Sh. Baldev Singh, the marginal witness of memorandum of partition dated 14.09.1968, PW-6 Sh. Hardev Singh, the plaintiff and PW-7 Sh. Navdeep Gupta, the hand writing and finger print expert.

On the other hand the defendants in the oral evidence examined DW-1 Sh. Bhushan Kumar, DW-2 Sh. Vikas Kumar and DW-3 Sh. Baldev Singh (defendant No.1).

Both the Courts below dismissed the suit while giving the following reasons:- i. Ex.P1 (memorandum dated 14.09.1968 and deed of partition dated 09.06.1977 Ex.P-3, being unregistered documents, are not admissible in evidence. In fact, Ex.P3 is extension of Ex.P-1. ii. In the revenue record, the land is still reflected as a joint land.

iii. The plaintiff is guilty of concealing the previous suit No.326 dated 10.06.1985, which was decided on 12.09.1986 and, therefore, the suit is liable to be dismissed under Order VII Rule 1(j).

iv. As per the doctrine of

, the finding with regard to the property being joint in an injunction suit, is final between the parties.

v. The suit filed by the plaintiff is barred by the

5 limitation period as the cause of action arose in the year 1996, whereas, the suit was filed on 01.08.2003. 8.

The First Appellate Court has also stated that PW-6 Sh. Hardev Singh states that no oral partition has taken place, whereas, Sh. Harnek Singh PW-2 states that partition took place after the execution of Ex.P-1 and Sh. Baldev Singh, another marginal witness of Ex.P-1 states the partition of the property through Ex.P-1.

This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the judgments passed by the Courts below along with the requisitioned record as well as the written arguments submitted by the learned counsel representing the parties. 10.

The written arguments submitted by the learned counsel representing the appellants are reproduced as under:- 0) 3

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Whereas, the learned counsel representing the defendant has filed a list of dates and events and made the following submissions:- 7

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Now, the Bench proceeds to analyze the reasons recorded by

6 the Courts below for dismissing the suit, while discussing the issues arising for adjudication in the present case.

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The Court now proceeds to discuss the first issue. The first reason assigned by the Courts below while dismissing the suit is with respect to non-admissibility of the two alleged memoranda of family settlement, which were proved on record. The first settlement deed was executed on 14.09.1968, whereas, the second settlement deed was made on 09.06.1977. On a careful perusal of the settlement deed dated 14.09.1968, it is evident that with the intervention of the relatives and the Panchayat, the land had already been divided by way of family settlement. In para No.2 and last paragraph of the settlement deed, it has specifically been noted that the family property has been divided amongst the family members namely Sh. Krishan Singh son of Sh. Pratap Singh and his three sons namely Sh. Gurdev Singh, Sh. Hardev Singh and Sh. Baldev Singh.

It was specifically recorded that the family owns the agricultural land at two places namely Barnala as well as village Sangera. The land located at Barnala was given to Sh. Gurdev Singh and Sh. Hardev Singh jointly, whereas, the 8 acres land in village Sangera, which was located adjacent to Rohiwala field, was exclusively given to Sh. Baldev Singh. Sh. Krishan Singh kept 10 acres of barani land in village Sangera. 8 Kanal land in village Sangera was allocated to Sh. Hardev Singh and Sh. Gurdev Singh. Even, the arrangement was made in the settlement deed with regard to the land which was under mortgage.

14.

After the death of Sh. Krishan Singh, the parties again sat together and decided to honour the memorandum of family settlement dated

14.09.1968. After specifically referring to the aforesaid settlement, the parties referred to the specific khasra numbers located at village Barnala as well as at village Sangera. It is apparent that the settlement reached in 1977 was identical to the original settlement reached in 1968. The provision was also made that the land measuring 103 kanals and 18 marlas shall continue to be owned and managed by their mother Smt. Bachan Kaur and after her death, the three brothers will jointly inherit the property. This 103 kanals and 18 marlas land is also located in village Sangera. 15.

On a careful reading of both the documents (i.e. memoranda of settlement), it becomes clear that through these documents, the family settlement arrived with the intervention of the respectables and the members of Panchayat, was only acknowledged. In the document executed in the year 1968, it was specifically stated that the possession of the properties has already been delivered and the dispute stand resolved. It was also noticed that this document was prepared in order to summarize what was orally agreed to between the parties. Thus, it was in the form of memorandum of family settlement and no right for the first time was created by the aforesaid family settlement. It may be noted here that in

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()*+,, the Supreme Court after discussing in detail the previous judicial decisions held that the Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. It was also held that if the family settlement suffers from a legal lacuna or a formal defect, the rule of estoppel is pressed into service and applied to shut out the plea of the person who being a party to the family arrangement seeks to unsettle a settled dispute. In para 10, the Court laid down the essentials of a family settlement, which are extracted as under:-

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If all the six tests laid down by the Apex Court are applied to the facts of the present case, it becomes evident that both the documents pass all the tests. In fact, the Court has emphasized in the fourth test that if

the property is divided through the document of a family arrangement, then such document requires valid registration. However, both the documents are in the form of a memorandum and that does not itself create or extinguish any right in the immovable property, that is why it does not fall within the mischief of Section 17(2) of the Registration Act, 1908. Recently, the aforesaid judgment has been reiterated in -% # .

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(2323+)3*. After analyzing the case law on the subject, the Court held that such document does not require registration and if due to any legal formal defect, it is found that such document requires registration then rule of estoppel can be invoked to uphold the document. In view of the aforesaid discussion, the findings of the District Court to hold that such documents are inadmissible in evidence, are set aside.

17.

The second reason assigned by the Court does not need much deliberation. The revenue record carries a rebuttable presumption of law. Once there were two different documents executed between the parties during the span of nearly 9 years, there was no doubt about the division of the property with the intervention of the respectables and members of Panchayat. It may be noted here that since it was a Joint Hindu Property, therefore, each member of the family had some already existing rights due to their existence in the family and no new rights in the property were being created. The entries in the revenue record stand rebutted in view of the documents, which were duly signed by the parties. 18.

The next reason assigned by the Court is with regard to the concealment of filing the previous petition. In fact, both the Courts have failed to take note of the fact that the aforesaid suit was not filed by the plaintiffs but filed by Sh. Baldev Singh along with his mother Smt. Bachan

$ Kaur. Moreover, Order VII Rule 1 provides that the plaint shall contain the following particulars. By way of local amendment (i.e. State Amendment), Clause (j) has been added, which is extracted as under:- !

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It may be noted here that the failure to disclose the fact of previous institution of suit itself would not be sufficient to dismiss the same, particularly when during the progress of the suit the aforesaid fact has been disclosed and the parties have proceeded with the case. This action may entail cost, however, dismissal of the suit, only on this particular ground that is technical is not appropriate, particularly when Order VII Rule 1 does not specifically require the Court to dismiss such suits. 20.

Both the Courts below have also held that the issue of partition of the property through the family settlement is in fact '

I because of the judgment (Ex.D-4) passed in a suit for perpetual injunction decided on 12.09.1986. A perusal of the judgment proves that the aforesaid suit was filed by Sh. Baldev Singh and Smt.Bachan Kaur against Sh. Gurdev Singh, Sh. Hardev Singh and Sh. Harbans Singh. Primarily, the suit was filed against Sh. Harbans Singh. Sh. Baldev Singh and Smt. Bachan Kaur prayed for the decree of perpetual injunction restraining defendant No.1 and 2 from alienating the suit land located in village Sanghera with respect to the land comprised in specific khasra numbers in favour of defendant No.3 or anyone else. It may be noted here that in the aforesaid

suit, the land located in village Sangera, which did not fell to the share of Sh. Gurdev Singh and Sh. Hardev Singh, was the subject matter of the litigation. In the previous injunction suit, the Court on appreciation of evidence, framed the following issues for adjudication:-

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21.

In that case because the property which fell to the share of the plaintiffs was not involved, hence, they did not appear in evidence, though, they pleaded the family settlement dated 09.06.1977. The Court decided the first issue against defendant No.3 as the defendant failed to prove that the suit was filed by Sh. Gurdev Singh and Smt. Bachan Kaur in collusion with defendant No.1 and 2.

22.

While deciding the issue No.2, the Court noticed that the defendant No.1 and 2 have not come forward to make any statement, whereas, defendant Sh. Harbans Singh failed to make a statement with regard to the family settlement.

23.

Thus, the Court held that the land is still joint amongst all the co-sharers. This particular finding has been heavily relied upon by the Courts below to debar the plaintiffs from seeking relief on the basis of two memoranda of family settlement. It may be noted here that firstly, the aforesaid suit was only filed for grant of injunction. Moreover, the subject matter of the previous suit was not identical to the land in dispute in the present case. In the present case, primarily the suit has been filed by the plaintiffs with respect to the property located in village Barnala, which was not the subject matter of the previous suit. The perusal of pleadings would have helped the Court to determine what was decided by the judgment.

5 However, the pleadings of the previous suit have not been produced. It is well settled that the pleadings cannot be proved by recitals of all the allegations mentioned in the judgment. Moreover, it is also a well settled rule that the issue in question must be directly and substantially in issue, in the previous litigation, before the doctrine of '

I is invoked to debar a party from claiming its right. It is evident from the reproduction of issues framed by the Courts below that the correctness or enforceability of family settlement dated 09.06.1977, was not the subject matter of litigation directly and substantially.

24.

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is also not applicable as the correctness and validity of the memorandum of family settlement arrived at in the year 1968 was never the subject matter of adjudication in the previous suit. Unless it is established that a particular issue was directly and substantially in issue in the previous judgment, the bar of

not be applicable.

25.

This question can be examined from another perspective. In a previous suit for injunction, there was no issue with regard to the inadmissibility in evidence, correctness and the validity of the family settlement deeds arrived at in the year 1968 and 1977. In such circumstances, the aforesaid finding arrived at by the Courts below, which is only incidental, would not result in debarring the plaintiffs from claiming on the basis of the aforesaid two memoranda of family settlement. In fact, the plaintiffs in this suit were the defendants No.1 and 2 in the previous suit and the property at village Sangera, that had fallen to the share of the defendants as per the family settlement, was the subject matter of the litigation. Hence, the plaintiffs herein, who were defendants No.1 and 2 in the previous suit neither appeared in evidence nor produced the related

documents to substantiate their plea.

26.

In $0 %44% 0 %'(+4$

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held that before the said doctrine is applied, the Court must apply the following conditions to the facts of the case:- 7

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In para 18 of this judgment, the Supreme Court held that in absence of the pleadings of the earlier suit, sometimes it is not possible to finally opine upon the doctrine of

28 In 1 / %(7 + -4- 2335(+ 88, the Supreme Court after discussing in detail the case law on the subject held as under:- 8

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It is evident that in para 15, the Supreme Court even held that if the earlier suit is confined to a small portion of the entire property, then the previous decision shall not necessarily constitute

for the entire property which becomes the subject matter of litigation in a subsequent suit. Hence, both the Courts have erred in granting declaration that the present suit was barred by doctrine of

30.

Keeping in view the aforesaid discussion, question No.2 is also answered in favour of the appellant.

31.

In view of the foregoing discussion, the Regular Second Appeal is allowed. The judgments passed by the Courts below are set aside and the suit filed by the plaintiff shall stand decreed. 32.

All the pending miscellaneous applications, if any, are also disposed of.

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