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Mukhtiar Singh vs Labh Kaur And Others on 28 February, 2018

Regular Second Appeal No.987 of 2010 (OM) {1}

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

R.S.A.No.987 of 2010 (OM)
Date of Decision: February 28th, 2018

Mukhtiar Singh
…Appellant
Versus

Labh Kaur (since deceased) through L.Rs and others
…Respondents

CORAM: HON’BLE MR.JUSTICE AMIT RAWAL

Present: Mr.A.K.Chopra, Senior Advocate with
Mr.Akshit Chaudhary, Advocate,
for the appellant.

Mr.Sanjiv Gupta, Advocate,
for respondents No.1 2.

Mr.HPS Ghuman, Advocate,
for respondent Nos.3 to 7.

*****

AMIT RAWAL, J.

Appellant-defendant is in Regular Second Appeal against the

judgment and decree dated 31.3.2001, whereby the suit filed by the

respondent-plaintiffs, i.e., daughters of Arjan Singh seeking declaration by

challenging the judgment and decree dated 31.3.1981 rendered in Civil Suit

No.123 of 17.3.1981 titled as “Mukhtiar Singh Versus Arjan Singh”, has

been decreed and the appeal filed by the appellant has been dismissed.

Before adverting to the arguments of the respective counsel

representing the parties to the lis, it would be apt to give brief preface of the

matter.

Plaintiff-respondents instituted the suit by challenging the

aforementioned decree on the ground that it was null void as Arjan Singh

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Regular Second Appeal No.987 of 2010 (OM) {2}

had one son and five daughters, including the wife. During the life time of

Arjan Singh, son and one daughter pre-deceased and was survived by four

daughters, i.e., the plaintiffs. Arjan Singh died intestate and, therefore, they

being the Class-I heirs, were liable to succeed his estate. Mukhtiar Singh,

being adopted son, obtained a fraudulent decree through misrepresentation

upon Arjan Singh, at the back of the plaintiffs. There was no family

settlement between the defendants and Arjan Singh. On the basis of the

collusive decree, defendant No.1 came into illegal and forcible possession

without, consent of the plaintiffs.

The suit aforementioned was contested by the defendant by

filing written statement taking all the customary pleas regarding the

maintainability, locus standi and other objections. On merits, it was stated

that plaintiffs had no right and title in the suit property as during the life

time, defendant No.2 Arjan Singh, had suffered a decree in his favour on the

premise that Mukhtiar Singh was his adopted son. The appellant treated

Arjan Singh as his father. However, father’s name of defendant No.1 had

wrongly been written as Surjan Singh, whereas it should have been Arjan

Singh. The suit was barred under Section 11, Order 2, Rule 2, Order 9 and

Order 23 Rule 1 of the CPC as earlier suit was filed by defendant No.2,

present defendant No.1, which was got compromised, wherein a sum of

`40,000/- was paid to Arjan Singh.

Since the parties were at variance, the trial Court framed the

following issues:-

“1. Whether the plaintiffs have no locus-standi to file the
present suit? OPD

2. Whether the plaintiffs cannot claim any rights, title, or
interest in the suit land during the life time of defendant No.2?

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Regular Second Appeal No.987 of 2010 (OM) {3}

OPD.

3. Whether the suit is not maintainable or competent?
OPD.

4. Whether the plaintiffs are daughters of defendant No.2?
OPP

5. Whether the suit land is joint Hindu family property of
defendant No.2 and the plaintiffs? OPP

6. Whether defendant No.2 adopted by defendant No.1 as
his son? OPD

7. Whether the judgment and decree dt.31.3.81 of SJIC
Nabha Shri Joga Singh in suit Mukhtiar Singh Vs. Arjan Singh
is void, illegal and invalid and is the result of fraud played on
defendant No.2 by defendant No.1? OPP

8. Whether the suit is not within time? OPD

9. Whether the suit is not properly valued for the purpose
of court fees and jurisdiction? OPD

10. Whether the suit is barred Under S.11 Order 2, Rule 2,
Order 9 and Order 23 Rule 1 CPC? OPD

11. Whether the suit is not maintainable? OPD

12. Relief.

Vide order dated 30.3.2001, following additional issues were

framed:-

11A Whether the order dt.12.5.81 passed by the court of SJIC
Shri Jaga Singh in suit Arjan Singh Vs. Mukhtiar Singh is
illegal, void and invalid and is the result of fraud played upon
by the defendant No.2 by defendant No.1 OPP.

11B Whether the plaintiffs are entitled to the declaration,
possession and permanent injunction as prayed for? OPP

The plaintiffs in support of their case, examined the following

witnesses:-

“1. PW-1 Karnail Singh
2. PW-2 Charan Singh
3. PW-3 Jang Singh

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Regular Second Appeal No.987 of 2010 (OM) {4}

4. PW-4 Gurnam Singh
5. PW-5 Labh Kaur
6. PW-6 Ajit Singh
7. PW-7 Gurbax Singh;

They also brought on record documents upto Ex.P24.

On the other hand, the defendant examined the following

witnesses:-

a) DW-1 Natha Singh
b) DW-2 Som Lal
c) DW-3 Ujjagar Singh
d) DW-4 P.R.Garg, Branch Manager, SBO Patiala;
e) DW-5 Gulshan Kumar
f) DW-6 Parkash Kumar
g) DW-7 A.K.Singla Document Finger Print Expert
h) DW-8 Surinder Gautam (Reader)
i) DW-9 Ashok Kumar Bansal
j) DW-10 Mukhtiar Singh

The defendant also brought on record the documents upto

Ex.D39.

Mr.A.K.Chopra, learned Senior Counsel assisted by Mr.Akshit

Chaudhary, Advocate, representing the appellant-defendant, in support of

the grounds taken in the memorandum of appeal, raised the following

submissions:-

“a) The trial Court failed to decide additional issue No.11-A,

which, vide order dated 30.3.2001, was framed with regard to

challenge to decree dated 12.5.1981;

b) The plaintiffs (daughters of Arjan Singh) had got some

property by way of a consent decree suffered by Arjan Singh

during his life time, depicted from Ex.D1. Deceased himself

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suffered a statement Ex.D33 in 1981 before the trial Court to

the effect that appellant Mukhtiar Singh was his adopted son;

c) When the instant suit was filed, Arjan Singh was alive;

d) The suit was not maintainable as Ex.D33 is the testimony

of Arjan Singh in a suit, wherein he acknowledged the

appellant, Mukhtiar Singh, to be adopted son;

e) On the basis of statement Ex.D5, the Court passed the

order;

f) Arjan Singh challenged the aforementioned decree by

filing a suit, which was withdrawn on 12.5.1981 owing to the

compromise Ex.D7. Even the statement suffered by Arjan

Singh in the decree was challenged by the respondent-

plaintiffs. The same has been proved through the testimony of

DW-9 Shri A.K.Bansal, Advocate. The Court was only required

to consider the objections and nothing else;

g) As regards the payment of `40,000/-, the same has also

been proved through documents Ex.D4 and Ex.D5. DW-4

R.P.Garg, Branch Manager of State Bank of Patiala proved that

the amount was duly deposited in the account of Arjan Singh;

h) The Courts below did not appreciate in correct

perspective that the witnesses produced were of the same

village, who knew the relationship amongst the parties. DW-1

Natha Singh was resident of Village Ichhewal and neighbour of

Arjan Singh. DW-2 Som Pal was Munshi of M/s Walaiti Ram

from where the appellant had borrowed a sum of `40,000/-.

DW-7 Atul Kumar Singla, Expert witness had compared the

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questioned and standard thumb impressions of Arjan Singh and

gave his detailed report opining that both the thumb

impressions were of the same and one person. DW-8 Surinder

Gautam was the Reader of the Sub Judge, who recorded the

statement of Arjan Singh resulting into passing of the judgment

and decree;

i) The suit, during the life time of Arjan Singh, at the

instance of the respondent-plaintiffs being daughters was not

maintainable, though the aforementioned fact had been negated

by this Court vide order dated 28.9.1992 ( Ex.P21);

j) Jamabandi Ex.P24 for the year 1976-77 proved that

Surjan Singh biological and natural father of the appellant-

defendant had bequeathed the property in favour of his other

siblings except the appellant. The only reason of excluding the

appellant was his adoption by Arjan Singh;

k) Once Arjan Singh, during his life time, challenged the

aforementioned judgment and decree, which resulted into

compromise, the suit of the respondent-plaintiffs was barred by

the provisions of Order 2 Rule 2 or Order 23 Rule 1 of CPC

and, thus, urged this Court for allowing the appeal by setting-

aside the judgments and decrees under challenge.

Per contra, Mr.Sanjiv Gupta, learned counsel for legal heir of

respondent No.1 and for respondent No.2 and Mr.H.P.S.Ghuman, learned

counsel representing respondents No.3 to 7 submitted that the concurrent

findings do not warrant interference as the appellant-defendant failed to

prove being adopted son, much less did not perform last rites of Arjan

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Singh as when to a specific question in the cross-examination, he feigned

ignorance or where his ashes were immersed. The aforementioned fact

proved to the hilt that he was never adopted by Arjan Singh and, therefore,

Arjan Singh was made to fall in his trap to suffer the decree under

challenge.

It was further submitted that Mukhtiar Singh was nephew (son

of his brother). As regards the maintainability of the suit, preliminary issue

was framed. The trial Court had dismissed the suit on preliminary issue vide

order dated 11.6.1985. Appeal filed before the Lower Appellate Court was

accepted vide order dated 18.10.1986 and when the matter reached to this

Court in S.A.O., the same, as noticed above, vide order Ex.P21 was

dismissed holding therein that the suit was maintainable. The decree was

also required to be registered as Mukhtiar Singh appellant (nephew) did not

have a pre-existing right.

It was also submitted that Arjan Singh before the matter was

compromised suffered a decree and denied that he had ever appeared in the

Court and admitted to the claim of Mukhtiar Singh. The aforementioned

statement was suffered on 15.3.1985 in a suit titled as “Arjan Singh Versus

Mukhtiar Singh”. All these factors have been taken into consideration by

the Courts below, therefore, there is no illegality and perversity nor any

substantial question of law arises for determination by this Court.

I have heard the learned counsel for the parties, appraised the

paper book, records of the Courts below and of the view that there is no

force and merit in the aforementioned submissions of Mr.Chopra. The

reason is not the one, but many.

1. Mukhtiar Singh was unable to answer the specific

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question as to who performed last rites of his father when he

died, the answer was in negative. It is strange that adopted son,

though got the property staked the claim, but despite having got

the property from Arjan Singh, would not perform the pious

duty in performing the last rites of his deceased father.

2. The decree is dated 31.3.1981 rendered in Civil Suit

No.123 dated 17.3.1981. However, the same was challenged

by Arjan Singh and he suffered the following statement:-

“I never came to know anything as to how the
compromise in question was effected was got thumb
marked and executed from me. Nothing was made
understood to me before obtaining my thumb impression
on the same. My mind was not working at that time
properly.

Xxx xxx xxx
It is correct that my daughters had filed a suit
against me. Through that suit I got two houses
transferred in the name of my daughter by confessing
judgment in it. It is correct that Mukhtiar Singh filed a
suit against me regarding the disputed property and in
that suit I appeared in the court and made a statement
which was recorded by the court. Through that statement
I admitted the claim of said Mukhtiar Singh and
accordingly his suit was decreed. However, I do not
know if I filed a suit against Mukhtiar Singh to get that
decree set-aside. It is just possible that I might have filed
a suit to get the decree in favour of Mukhtiar Singh set-

aside. It may be possible that in that second suit we
compromised with Mukhtiar Singh. But it is wrong to
suggest that Mukhtiar Singh paid me an amount of
Rs.40,000/- for compromise in that suit. However, it is
correct that I deposited amount of Rs.40,000/- on that

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day in my two separate accounts with State Bank of
Patiala, Nabha Branch. (Volunteer to say that amount of
Rs.40,000/- was deposited by me by selling some other
land). I sold my land of village Pichewal to Sh.Gurnam
Singh to get that money. I cannot tell when or during
which year that land was sold to said Gurnam Singh.
That might have been sold 10-15 years ago. I sold two
acres of land to said Gurnam Singh. I cannot tell the
price of that land. I married two my daughter after
selling my that land to Gurnam Singh. My mind has not
been working properly since long. It is wrong to suggest
that I have deposed falsely or that I compromised with
the defendant in the second suit after obtaining an
amount of Rs.40,000/- from him or that said amount was
deposited by me on the same day in my separate bank
account with State Bank of Patiala, Nabha Branch. The
disputed land was inherited by me from my father and
fore-fathers. We were three brothers namely Sh.Surjan
Singh, Bachan Singh and me. We inherited to our
ancestral property equally. I had no son of my own.
Defendant Mukhtiar Singh is son of my brother Surjan
Singh. We are Jat Sikh by caste. It is wrong to suggest
that Mukhtiar Singh was adopted by me as a son and
was brought up and settled in life by me as my son. It is
further wrong to suggest that a partition had taken
place between us on 15.6.80 and the suit land had fallen
to the share of Mukhtiar Singh and the remaining
property had fallen to my share or that the later civil
court decree merely recognised this oral family
settlement. It is wrong to suggest that I have filed this
suit under pressure of my daughter and sons in law.

ROAC 15.3.85 Sd/-SJIC”

As regards the maintainability of the suit, this Court had

already held that the suit was maintainable nor hit by the provisions of

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Order 23 Rule 1 CPC, i.e., the decision rendered in S.A.O.No.71 of 1986

(Ex.P21 dated 28.9.1992). Any right accrued in favour of a person for the

first time in respect of the property having the value of more than `100/-, as

per Section 17(1) of the Registration Act, required registration. The decree

of 1981 conferred a right upon Arjan Singh in respect of property having

value of more than `100/-, therefore, it required registration.

The argument of Mr.Chopra with regard to the fact that Arjan

Singh had taken care of daughters by giving them houses and since he did

not have son, adopted the appellant, Mukhtiar Singh son, is not sustainable

as Mukhtiar Singh failed to lead any evidence whether as per the provisions

of Hindu Adoption and Maintenance Act, for the purpose of adoption, was

given or taken in ceremony ever held or otherwise.

Placing on record one jamabandi to show that Surjan Singh had

bequeathed the property in favour of other siblings except the appellant

would not entitle the appellant to have right and interest in the property. As

per the statement of Arjan Singh, it irresistibly is concluded that he had no

intention either to adopt Mukhtiar Singh or bequeath the property by way of

collusive decree.

The payment of `40,000/- has not been connected or proved to

have been deposited in the account of Arjan Singh or related to the same

very transaction, i.e., fallout of the decree under challenge. In my view, the

appellant-defendant had attempted to lead evidence, but has not been able to

prove the defence specifically taken in the written statement and rightly so,

the Courts below decreed the suit.

For the reasons stated above, no ground for interference in the

concurrent findings of Courts below is made out. No substantial question of

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law arises for determination by this Court. Resultantly, the appeal is

dismissed.

February 28th, 2018 ( AMIT RAWAL )
ramesh JUDGE

Whether speaking/reasoned Yes/No
Whether Reportable: Yes/No

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