Ajmer Singh and others vs Jangir Singh and Tek Singh and others

Teja Singh, C.J.—The property which was the subject-matter of the suit out of which this appeal has arisen consisted of houses and agricultural land situate in two villages, namely Rai khana and Dhansingh Khana. In the course of proceedings in the trial Court the plaintiffs gave up the houses and confined their claim to the agricultural land. Dial Singh was the original owner of the land. He had two wives, Nihal Kaur and Sada Kaur. By Nihal Kaur he had three sons, Ajmer Singh, Shamsher Singh and Gurbakhsh Singh. The land situated at Raikhana was gifted by Dial Singh in favour of Ajmer Singh, Shamsher Singh and Gurbakhsh Singh and was mutated in their names during his life time. The other land they obtained on Dial Singh''s death. The plaintiffs, Pritam Singh and Jangir Singh, are the sons of Tek Singh. They sued Ajmer Singh, Shamsher Singh and Gurbakhsh Singh for one fourth share of the whole land on the allegation that their father was Dial Singh''s son by Sadda Kaur. The defendants denied the plaintiffs'' allegation and further urged that the suit was barred by time and the plaintiffs could not agitate in this suit the question relating to their relationship with Dial Singh because of the judgment of the Additional Nazim, Barnala, dated 17-5-1984 in the appeal preferred in his Court by Dial Singh from the decree of the Naib Nazim, Barnala. As regards the judgment of the Additional Nazim, Barnala, the position of the plaintiffs was that it was a nullity, because Dial Singh had no right to appeal and moreover it was obtained by fraud. To this the defendants'' reply was that since the plaintiffs had not brought any suit for setting aside the decree of the Additional Nazim Barnala within the time allowed to them by law they were not bound by it.

The trial Sub-Judge held that the judgment of the Additional Nazim, Barnala was a nullity and consequently there was no necessity on the part of the plaintiffs to have it set aside by a regular suit. He further held that Tek Singh, father of the plaintiffs, was the son of Dial Singh and granted them a decree for possession of one fourth share of the suit land. The defendants appealed to the District Judge who upheld the finding of the trial Court, that Tek Singh was Dial Singh''s son, and thy decree granted by him with respect to the Dhansingh Khana land, but dismissed the plaintiffs'' suit so far as the Raikhana land was concerned because that land in his opinion non-ancestral and the gift of it by Dial Singh to the defendants could not be successfully challenged by the plaintiffs. The defendants have now come to this Court in second appeal against the appellate decree of the District Judge. The plaintiffs have put in cross-objections alleging that the District Judge was wrong in accepting the defendants'' appeal with regard to the Raikhana land.

Very lengthy arguments were addressed to us regarding the effect of the judgments of the Naib Nazim, Bhatinda, and Additional Nazim, Barnala, but before I refer to them it appears to be desirable to give briefly the history of the previous litigation. Tek Singh at first brought a suit against Dial Singh for 1/6 share of his land in lieu of maintenance on the allegation that he was Dial Singh''s son. The Panchayat by their Order of 19-10-1978 BK decreed Tek Singh''s suit. Later on this decree was set aside and on 4-5-1979, Tek Singh sued Dial Singh in the Court of Naib Nazim Bhatinda, for possession of l/5th share of the land in lieu of maintenance. Two questions were to be determined in that case: one whether Tex Singh was Dial Singh''s son and second whether Tek Singh could get possession of any land during the life time of his father for his maintenance. The Naib Nazim decided the first question in Tek Singh''s favour but finding the second question against him dismissed his suit on 26-6-1980. Against this decree both Tek Singh and Dial Singh preferred separate appeals. The former''s appeal was heard by the Nazim, Barnala, who had the powers of the District Judge, and was dismissed. The appeal of the latter came up for hearing before the additional District Judge and was heard and accepted ex parte. The Additional Nazim, set aside the finding of the Naib Nazim, Bhatinda, as regards the relationship between Tek Singh and Dial Singh and held that Tek Singh was not Dial Singh''s son. The date of the decision of the appellate Court, i.e., the Additional Nazim is 17-5-1984. Tek Singh went on further appeal to the High Court, Patiala, against the decree of the Additional Nazim, Barnala, but the same was dismissed on 6-9-1984 as barred by time. The Counsel for the plaintiff-respondents made a half-hearted attempt to show that the judgment of the Panchayat in which it was held that Tek Singh was Dial Singh''s son was binding upon the parties, but when his attention was drawn to paragraph 5 of Tek Singh''s plaint in the Court of Naib Nazim, Bhantinda, wherein he has stated in so many words that the decree of the Panchayat had been set aside because of the want of jurisdiction, he gave up this contention and urged that the judgment of the Naib Nazim who had also held Dial Singh to be the father of Tek Singh operated as res judicata. He conceded that the decision of the Naib Nazim on the principal question involved in the case was upset by the Additional Nazim, Barnala, on appeal but he maintained that Dial Singh had no right to prefer the appeal and consequently the decision of the Additional Nazim was without jurisdiction and void. The Counsel for the defendants-appellants on the other hand argued that in spite of the fact that the plaintiffs'' suit had been dismissed, since the finding that. Tek Singh was Dial Singh''s son had been incorporated in the decree, and Dial Singh was aggrieved from this part of the decree, a right to appeal from the decree had accrued to him. The Counsel further argued that since Dial Singh was deprived of the costs of the suit and the reason given for this as given in the decree was that he was the plaintiff''s father and had deprived him of his maintenance, which was a source of hardship to the plaintiff, Dial Singh had at least the right to appeal for costs and while doing so he could agitate the correctness of the trial Court''s finding about his relationship with Tek Singh.

Both the trial Court and the District Judge have held the appellate Court''s decision and decree, i.e., of the Additional Nazim, Barnala to be without jurisdiction and hence a nullity. At the same time the District Judge has taken the view that decision of the Naib Nazim could not operate as resjudicata.

A large number of cases were cited before US by Counsel in order to substantiate their respective allegations. Mr. Shumer Chand, learned Counsel for the appellants, relied upon the observations made by Old field and Mahmood, JJ., in ''Jamiat-Un-Nisa v. Lutf-Un-Nisa'', 7 All 606 (FB.) in that case too though the plaintiff''s suit had been dismissed certain issues pending in the case were found against the defendant and the question was whether he (i.e., the defendant) could prefer an appeal from the trial Court''s decree. The case was referred to a Full Bench of five Judges. The majority view was that the decree being in the defendant''s favour he had no right to appeal. One of the points that appear to have been it urged before the Bench was that in view of the fact that on some points the trial Court had decided against the defendant the decree was not in conformity with the judgment and this by itself gave the defendant a right to appeal from the decree. On this point the majority view was expressed in the following words:

We find that the decree before us is, on the face of it, entirely in favour of the defendant and the proper presumption is that it has been correctly prepared in advertence to the judgment. The mode in which this presumption could have been rebutted and the decree set right is provided in Section 206 of the Code, and we do not think that any other mode than that directly created by statute for bringing the decree Into conformity with the judgment exists, and that until it appears upon the face of the decree that some thing has been decreed adversely to the defendant, no right of appeal arises, because there is nothing in the decree itself for him to appeal against.

Oldfield and Mahmood, JJ., did not accept the majority view and wrote separate dissenting judgments, Oldfield, J., held that the decree to agree with the judgment and fulfil the requirements of Section 206 of the C.P.C., should contain the material point for determination arising out of the claim and material for decision thereon and that if this had not been done the defect was a good ground of appeal notwithstanding that the decree, on its face, might be altogether in favour of the appellant and notwithstanding that he might not have applied for amendment of the decree u/s 206 for review of judgment. Mahmood, J., agreed with Oldfield and added that where the decree did not make any mention of all the points decided against a party who appeals from the decree even if it be conceded that he had the right to have the decree brought in conformity with the judgment either by review or amendment of the decree, his negligence to do so did not make him incapable of obtaining the same result by the exercise of the right of appeal. On the strength of the observations made by Mahmood,.J., particularly the position taken up by Mr. Shamair Chand was that even if the decree had been silent about the finding of the Naib Nazim that Tek Singh was Dial Singh''s son in view of the fact that he had given that finding Dial Singh was entitled to appeal from the decree. He further argued that according to the majority view also Dial Singh''s appeal was competent, because the decree not only deprived Dial Singh of the costs of the suit, which should have been awarded to him, as the successful party, but incorporated therein the finding on the issue which had been decided against him.

Mr. Chiranji Lal, Counsel for the plaintiff-respondent was constrained to admit that Dial Singh could prefer an appeal for costs but he maintained that the scope of that appeal was limited and the only question which the appellate Court could decide was whether costs of the suit had been wrongly refused to Dial Singh, and it could not enter into the merits of the finding that the plaintiff whose suit had been dismissed was Dial Singh''s son. Now, even if I agree with the respondent''s Counsel it cannot be said that the appellate judgment of the Additional Nazim, Barnala was without jurisdiction, and the most that can be said is that he decided a point, which he could not properly decide and this only amounts to an irregularity. Condition would have been quite different if no appeal lay to him at all, because in that case the entire proceedings of the appeal before him would have been vitiated by total want of jurisdiction and his... judgment would, therefore, have been void. But as the matter stands, he had the jurisdiction to entertain the appeal and if he committed any mistake or irregularity in deciding it that does not make his judgment void. In the view that I take the judgment of the Naib Nazim merged in that of the Additional Nazim, Barnala and since the latter held that Tek Singh was not the son of Dial Singh this matter was res judicata between the parties, and the plaintiff''s suit was liable to be dismissed on this ground alone.

Let us, however, assume for the sake of arguments that the additional Nazim, Barnala, had no jurisdiction to give any finding on the issue whether Tek Singh was Dial Singh''s son and his judgment can have no effect In the present suit. This means that we are only left with the judgment of the Naib Nazim, Bhatinda. As I have already observed the District Judge has held that that judgment does not operate as res judicata and if we concede for a moment that Dial Singh had no right to appeal from the decree of the Naib Nazim, this finding of the District Judge will have to be accepted as correct. I must here mention in fairness to the respondent''s Counsel, that he agreed with the District Judge that the Naib Nazim''s decision was not resjudicata. In the circumstances the question is whether the plaintiff-respondents can make any use of that judgment as a piece of evidence. The District Judge has remarked that notwithstanding the fact that the judgment did not operate as res judicata the finding on the issue which was decided against Dial Singh threw upon the defendant "a heavy responsibility of proving that that finding to the former suit was wrong." Reliance was placed by the learned Judge in this connection upon section 13 of the Indian Evidence Act. Before I turn to that Section I may point out that relevancy of judgments of Courts of justice are dealt with by Sections 40, 41, 42 and 43. Section 40 relates to judgments which by law prevent the Court from taking cognizance of the suit or the trial etc. Since it is conceded that the judgment of the Naib Nazim did not operate as resjudicata this section has no applicability. Section 41 relates to judgments in rem such as those of probate, matrimonal admirality or insolvency Courts. Section 42 lays down that judgments, orders or decrees other than those mentioned in Section 41 are relevant if they relate to matters of a public nature relevant to the inquiry. It is not even urged that the judgment of the Naib Nazim comes within the purview of this Section. This leaves us with Section 43 which reads as follows:

Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order, or decree is a fact in issue, or is relevant under some other provisions of this Act

It is not alleged by the plaintiffs that the existence of the previous judgment is a fact in issue in the present case. So the judgment can be used only if it is shown to be relevant under any other provision of the Act, and such a provision, according to the respondent''s Counsel is Section 13 of the Evidence Act. The words of this section are:

Whether the question is as to the existence of any right or custom, the following facts are relevant :

(a) any transaction by which the right or custom in question was created, claimed, modified, recognised asserted or denied or which was inconsistent with its existence;

(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.

It will be seen that the section makes relevant, only certain transactions and instances for the purposes of establishing the existence of any right or custom. How can the present case be brought within the ambit of this section, I cannot under stand, because all that we have to determine in the case is the alleged relationship of son and father between Tek Singh and Dial Singh and neither a question of any right nor any custom involved. The District Judge has referred to ''Mt. Aziman v. Ibrahim Beg'', AIR 1936 Oudh 189. but that was a case in which the question involved was definitely of a right namely, the ownership of a property. The Privy Council case AIR 1922 241 (Privy Council) also related to a right. The respondent''s Counsel has not been able to cite even a single authority in support of his contention that when a judgment in a previous case is not relevant under Sections 40, 41 and 42 of the Indian Evidence Act and it cannot be shown to be relevant under any other section of the Act, it can still be produced as a piece of evidence. Section 43 of the Evidence Act, which I have reproduced above, lays down that such a judgment, even if it relates to a fact in issue in the subsequent case, is not relevant at all. Of the various illustrations appended to the Section illustration (a) is very much in point: (a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

The only thing now left is to discuss the parties'' evidence but before I do so I must make one observation which has important bearing on the decision of the case. The onus to prove that Tek Singh was Dial Singh''s son was placed upon" the plaintiffs and this was rightly done, because the plaintiffs having come to Court on the allegation that they were entitled to a share in the property left by Dial Singh because their father was Dial Singh''s son, before they could succeed, It was their duty to substantiate their allegation by evidence. The District Judge considered that because of the judgment of the Naib Nazim in the previous case the onus shifted to the defendants. My own opinion is that since both sides have produced all the evidence that they wanted to produce, or which was in their power to do, the question of onus becomes immaterial and the matter has to be decided on the strength of the entire evidence.

6-7. (After reviewing the evidence, oral and documentary produced by the plaintiff, His Lordship proceeded to consider the evidence produced by the defendant in rebuttal.)

This is all the evidence that the plaintiffs produced. In rebuttal the defendants examined five witnesses including Ajmer Singh defendant. Dalip Singh D.W. 1, as I have mentioned above is Dial Singh''s brother''s son. If it be true that Tek Singh plaintiff''s father was as much the son of Dial Singh as the father of the defendants there was no reason whatsoever why Dalip Singh should have taken up the side of the defendants against the plaintiffs and perjured himself. He gave us the true relationship between Tek Singh and Dial Singh and his opinion on the point supported as it is by the conduct of Tek Singh, is relevant u/s 50 of the Indian Evidence Act, inasmuch as he deposed that Tek Singh addressed Dial Singh as ''Phuphar'' and Dial Singh himself told him that Tek Singh''s father Dhian Singh was his wife''s brother. I may here point out that though almost all the witnesses for the plaintiffs averred that Tek Singh was Sada Kaur''s son, since none of them had any personal knowledge in the matter their averment merely amounted to opinion and such an opinion not being supported by any kind of conduct was irrelevant. Gurdit Singh D.W. 2 is also a cousin of the defendants. His statement was that his father was a defendant''s ''Taya.'' He corroborated the testimony of D.W. 1 that Tek Singh used to call Dial Singh as his ''Phuphar.'' Harnam Singh D.W. 3 deposed that Dial Singh had two wives and the elder one who belonged to Machhana was issueless. The plaintiffs wanted us to disbelieve this witness because he was the defendant''s collateral. The observations that I have made with regard to D.W. 1 apply equally to him and there do not appear to me any good reason to reject his testimony. Ajmer Singh corroborated the evidence of the other witnesses that Tek Singh used to address Dial Singh as ''Phuphar'' and further proved the written statement (Ex. D-A) that Dial Singh put in the suit filed against him by Tek Singh and in which he denied that Tek Singh used to address Dial Singh as ''Phuphar'' Pleader D.W. 5 also proved the above-mentioned written statement.

From what I have said above it will be seen that though the number of the defendant''s witnesses was smaller than those of the plaintiffs'' witnesses their evidence was more weighty. The learned District Judge has characterised the deposition of some of the defendants'' witnesses as of negative character, but this view is positively wrong because the witnesses besides, denying that Tek Singh was Dial Singh''s son gave a very good reason for what they deposed to and that reason was that Dial Singh was addressed by Tek Singh as ''Phuphar.''

In addition to the oral evidence the defendants also relied upon two documents (Ex. D-A Dial Singh''s written statement which has already been referred to and the statement made by Dial Singh as Tehal Singh''s witness in the previous case.) Both in the written statement and in the one made in Court Dial Singh denied that Tek Singh was his son. I agree with the District Judge that even though Dial Singh was Tek Singh''s own witness the latter is not bound by what he stated, but there can be no doubt that the statements are relevant and have considerable value because we have not been told why Dial Singh should have disowned his own son. It may be that his relations with Mt. Sada Kaur became strained but if Tek Singh had been born of Sada Kaur and he was Dial Singh''s son it is impossible to think that he would have discarded him in the manner he is alleged to have done. The learned Counsel for the plaintiffs made much capital of the fact that Tek Singh sued Dial Singh for maintenance during, the latter''s life time and argued that had he not been Dial Singh''s son he would not have taken the courage of raising the question of his percentage when Dial Singh was still alive. What appears to me to have happened is that when Sada Kaur was not able to produce a child Dial Singh married another wife. Probably because of his second marriage or probably because Sada Kaur and Dial Singh''s new wife could not pull on together, Sada Kaur went back to her parents. Or it may be that Dial Singh turned her out and when she was once with her own relations she took hold of her brother''s son and tried to foist him as the son born of her. Dial Singh would not tolerate this and consequently there was litigation between Tek Singh and him. I must say that this is just a surmise on my part and the true facts could have'' been known only to Mt. Sada Kaur and Dial Singh.

So far as the case is concerned the question whether Tek Singh was Dial Singh''s son has to be decided upon the strength of the evidence and as I have gone through the whole evidence and considered it carefully my opinion is that not only this fact has not been proved but further that it is proved that Tek Singh was not Dial Singh''s son.

In the view that I take the plaintiffs'' suit was liable to be dismissed in entirety and for this, reason the cross-objections fail ipso facto. Besides this the Raikhana land was gifted to the defendants by Dial Singh during his life time and since that land was his self-acquired property the plaintiffs even if they had succeeded in showing that their father was Dial Singh''s son could not challenge the gift successfully. The allegation that the land had been acquired by Dial Singh with the produce of the ancestral land did not make it ancestral under custom.

In the result I would allow the appeal, set aside the judgment and decree of the Court below and dismiss the plaintiffs'' suit. The cross-objections shall also stand dismissed. There will be no order as to costs.

Gurnam Singh, J.

I agree.