Babu Ram vs Kundan and Others

R.L. Anand, J.—Unsuccessful Plaintiff Babu Ram has filed the present appeal and it has been directed against the judgment and decree dated 7.11.1986 passed by the Court of Additional District Judge, Ambala, who affirmed the judgment and decree dated 7.11.1985 passed by the Court of Sub Judge Ist Class, Jagadhri, who dismissed the suit of the Plaintiff-Appellant Babu Ram for declaration as prayed for.

The brief facts of the case are that Babu Ram filed a suit for declaration to the effect that decree passed in Civil Suit No. 135 of 1981 decided on 11.9.1981 by the Court of Sub Judge Ist Class, Jagadhri in case Sadhu Ram v. Kundan in respect of the land measuring 43 Kanals 10 Marias situated in village Akbarpur Teh. & District Ambala as per jamabandi for the year 1976-77 is null and void being based on fraud and misrepresentation played by Defendants No. 1 and 2 namely Kundan and Sadhu Ram and the said decree does not affect the rights of the Plaintiff Babu Ram and Defendant No. 3 Rattan to the extent of one half share in equal shares and the Plaintiff also prayed for joint possession of the land in dispute.

The case set up by the Plaintiff in the trial Court was that the land measuring 43 Kanals 10 Marias situated in village Akbarpur and fully described in the heading of the paint was the joint Hindu family property and as such Kundan, Defendant No. 1 was not competent to suffer a consent decree in favour of Defendant No. 2 Sadhu Ram in civil Suit No. 135 of 1981 title Sadhu Ram v. Kundan and the said decree does not bind the rights of the Plaintiff and Defendant No. 3 Rattan in the said joint property nor it confers any valid title in favour of Defendant No. 2 Sadhu Ram. The Plaintiff and Defendant No. 3 Rattan are legally entitled to the property which is owned and possessed by their father Kundan being the joint Hindu Family property. Defendant No. 1 Kunda and Sadhu Ram Defendant No. 2 was asked several times to admit the claim of the Plaintiff and Defendant No. 3 but to no effect, hence the suit.

Notice of the suit was given to the Defendants. Defendant No. 2 Sadhu Ram filed a separate written statement and he averred that Plaintiff Babu Ram had no locus standi to file the sit; that the decree was passed on the basis of family arrangement, that Plaintiff and Defendant No. 3 were allotted 13 acres of land situated in village Toda in the said family settlement and there is no joint family. The said decree dated 11.9.1981 is binding upon the Plaintiff. The suit is false and fabricated. The Plaintiff is estopped by his own act and conduct from filing the present suit; that the Plaintiff has no locus standi to file the suit.

Defendant Nos. 1 and 3 namely Kundan and Rattan filed a separate written statement in the trial Court and they took the defence that Plaintiff had no locus standi to file the suit! Total land of the family was partitioned as per family arrangement which came into existence before the passing of the decree dated 11.9.1981. That decree is also binding upon the Plaintiff.

The Plaintiff filed replications to the written statements of the Defendants in which he reiterated his allegations made in the plaint by denying those in the written statement and the trial Court framed the following issues for the disposal of the suit:

Whether the impugned decree passed by the Court of Shri P.C. Goel, Sub Judge is null and void on the ground alleged in the plaint? OPP

Whether the land in dispute was joint Hindu Family property consisting of the Plaintiff and the Defendants, if so to what effect? OPD

Whether the Plaintiff has got no locus standi to file this suit? OPD

Whether the Plaintiff is estopped from filing the present suit but by his act and conduct as alleged? OPD

Whether the suit is not maintainable? OPD

Whether Defendant No. 2 is entitled for special costs u/s 35-A Code of Civil Procedure? OPD

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, issue No. 1 was decided against the Plaintiff. Under issue No. 2 it was held that the properly in dispute was a joint Hindu family property. Issue Nos. 3 and 4 were decided against the Plaintiff. Issue No. 5 was decided against the Defendants. Issue No. 6 was also decided against the Defendants and initially the suit of the Plaintiff Babu Ram was dismissed.

Aggrieved by the judgment and decree of the trial Court Babu Ram Plaintiff filed first appeal in the Court of Additional District Judge, Ambala who vide impugned judgment and decree dated 7.11.1986 affirmed the judgment and decree dated 7.11.1986 affirmed the judgment and decree of the trial Court and aggrieved by this judgment and decree the Plaintiff has filed the present appeal.

I have heard Shri Som Nath Saini, Advocate, on behalf of the Plaintiff-Appellant and Shri Sarwan Singh, Sr. Advocate, assisted by Shri R.A. Sheoran, Advocate, on behalf of the Respondents and with their assistance I have gone through the record of this case.

The trial Court after discussing the evidence with regard whether the property was partitioned between the brothers namely Babu Ram, Sadhu Ram and Rattan during the life time of their father Kundan or not held in para No. 12 of the judgment which is reproduced as under.

These are accepted facts that Kundan father of the Plaintiff has kept only 15 Kardas of land out of the total holding with him and the rest of the land has already been partitioned between the Plaintiff, Defendants No. 2 and 3 and the land has already been partitioned in equal shares between Babu, Sadhu and Rattan. So from the oral evidence this fact is proved that family settlement arrived at between the parties and the land has been divided equally. The best person was Shri Kundan, father of the parties, who could have deposed categorically about the partition of the land but no such evidence has been brought about any fraud. So I hold that impugned decree is null and void. This issue is decided against the Plaintiff and in favour of the Defendants.

This aspect was also taken into consideration by the first Appellate Court which gave the finding in para No. 15 of the judgment which is reproduced as under:

By this decree the Plaintiff-Appellant was not only person affected as he had another brother Rattan Singh who appeared as DW2 and admitted that Sadhu Ram was residing in village Akbarpur Tehi for the last 35 years and with common consents of all, it was agreed that the land situated at village Akbarpur Tehi be given to Sadhu Ram and therefore, no fraud was practised and the decree was got passed in favour of Sadhu ram with the consent of all. There are neither any allegations nor any proof that Rattan Lal colluded with Sadhu Ram and nor for that any collusion there could be any motive and hence, it was established that Sadhu Ram was in cultivating possession of the land for the last more than 30 years and the land was purchased by Kundan Lal and it was his self acquired property and despite all that as per consents of all brothers and father Kundan Lal the decree by Kundan Lal was suffered in favour of Sadhu Ram in respect of the suit land and the Plaintiff-Appellant could not prove that the impugned decree was illegal, null or void. As already said Kundan Lal had not given the land only to Sachu Ram but he had also given the land to Babu Ram Plaintiff-Appellant and Rattan Singh his other son and that land was situated in village Toda and though the area given to Sadhu Ram but there could be difference of joint of land, situation and location of the land. Above all that it being self-acquired property of Kunda, there was no legal mandate upon him to make equal distribution of his property. Hence the findings of the learned Sub Judge that the Plaintiff had failed to prove that the decree suffered by Kundan in favour of Sadhu Ram was null and void, are correct and the appeal has got no merit and the same stands dismissed. However, the parties are left to bear their own costs.

The reading of the above two paras would show that there is a contradictory findings vis-a-vis the trial Court and that of Additional District Judge Ambala when the higher Court held that the disputed property as self-acquired property of Kundan and it was not obligatory on his part to make an equitable distribution of the property. After seeing the evidence led by the parties it is established that the property situated in village Akbarpur Tehi measuring 43 Kanals 10 Marias was in fact a joint Hindu family property which was acquired by the three brothers namely Babu Ram Plaintiff, Sadhu Ram DefendantNo.2 and Rattan Defendant No. 3 and it was purchased n the name of their father Kundan. As Kundan and his sons were constituting a joint Hindu family and their cultivation was also joint and the properties were acquired with the joint funds of the family. Still it has to be seen whether the Plaintiff Babu Ram has been able to make out a case or not. The record of the trial Court shows that the properties of the family were situated in different villages namely Akbarpur Tehi measuring 43 Kanlas 10 Marias in village Toda measuring 28 Kanals 2 Marias, in village Ganni Khera 43 Kanals and in village Haripur Monda 28 Kanals. It is also established on the record that Sadhu Ram started residing in village Akbarpur Tehi, and there is an admission to that effect also by Babu Ram Plaintiff who admitted that Sadhu Ram with his brother had been living in village Akbarpur Tehi was cultivating the land situated in that village and that the (Plaintiff) and Rattan DefendantNo.3 were living in village Toda and cultivating that land. This admission on the part of the Plaintiff fortifies the stand of the Defendant Sadhu that a family arrangement took place according to which the land of village Akbarpur was given to him and the land of village Toda was given to the Plaintiff and Rattan Defendant No. 3. When the property has been partitioned and the status of joint Hindu Family has been broken, it will be wrong on the part of the Plaintiff to say that property of Akbarpur Tehi still remained Joint Hindu Family and that Kundan Defendant No. l was not competent to transfer the property in favour of Sadhu Ram Defendant No. 2. In this regard it may be useful for me to refer to the pleadings of the earlier suit, which was filed by Sadhu Ram against his father Kundan and sought a declaration that he was the owner in possession of the land measuring 43 Kanals 10 Marias of land situated in village Akbarpur Tehi. In para No. 2 of the said plaint Sadhu Ram categorically alleged that about 6 months earlier to the filing of the suit a family settlement was effected and his relations were severed from the family and the land in dispute was given to ''him as exclusive owner and since then he was in cultivating possession of the land in dispute. Kundan Singh filed written statement and categorically admitted the allegations of the Plaintiff Sadhu Ram and on the basis of those admissions, the Court of Sub Judge Ist Class, Jagadhri, vide judgment dated 11 9.1981 passed the decree in favour of the Plaintiff. Defendant No. 3 Rattan''s interests are also being affected by the judgment and decree dated 11.9.1981 but he has never given the challenge to that judgment and decree which prima facie shows that there was family arrangement and by virtue of that arrangement the land of village Akbarpur held to be the share of Sadhu. It is not the case of the Plaintiff in the present case that Rattan Defendant No. 3 was staying with his brother Sadhu Defendant No. 2. Once it is established that there was severance of status amongst the joint family and there was separation of interest in the immovable property between the father and the sons and by virtue of the family settlement a particular lot of the property has gone to the share of one brother, the other brothers cannot challenge the decree on the plea that it still remained the joint Hindu family property or that it could not be transferred in a valid manner by virtue of consent decree. The learned Counsel for the Appellant has mere relied upon the case law to appreciate the proved facts on the file. So far as the legal proposition of law and the case law relied upon the learned Counsel for the Appellant is concerned, possibly there cannot be any dispute with the proposition but before applying the case law I have to see whether the Plaintiff has been able to prove successfully that there was no severance of status of the joint family and that there was no family partition as alleged by Sadhu Ram Defendant. I had already held above after looking the evidence led by the parties that there was a valid family settlement between father and sons. The property has been distributed amongst the sons. The Plaintiff Babu Ram got the property in village Toda long with his brother Rattan. The parties were residing separately and they were cultivating their separate parcels of land and in these circumstances it will be not valid on my part to hold that the property still remained joint between the parties and that Kundan Defendant No. 1 was not competent to suffer a consent decree dated 11.9.1981.

Learned Counsel for the Appellant has relied upon Bhoop Singh Vs. Ram Singh Major and others, and submitted that the consent decree dated 11.9.1981 does not consider any right, title or interest in favour of Sadhu Ram Defendant No. 2 as the said decree has not been registered. The argument is not appealable because the Plaintiffs case himself is that property was joint Hindu family property meaning thereby Sadhu Ram has pre-existing right in the property which he has partitioned by way of family arrangement. By virtue of decree dated 11.9.1981, no rights were being conferred upon Sadhu Ram for the first time. In these circumstances, this authority is not applicable to the facts in hand. The learned Counsel for the Appellant also relied upon Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and Others, and submitted that severance of status of joint family has no effect on joint family property which continues to be joint until it is partitioned. Again this authority lays down the broad principle of law with which nobody can have a possible quarrel. But in the present case it is established that the joint family of Kundan Singh severed when the brothers started residing separately from each other and they started cultivating the land independently without interference from others. There was a total disruption of the joint family as well as joint family property and this aspect of the case has been rightly appreciated by the trial Court. Though there is contradiction with regard to the finding between the first Appellate Court and the trial Court but on the appraisal of the evidence by this Court it stands established that the joint Hindu family as well as joint properties of the family were severed and partitioned and the Plaintiff along with his brother Rattan got the properties of village Toda. Counsel Shri Sarwan Singh has also placed his reliance upon Parduman Singh and Anr. v. Kartar Singh 1996 PLJ 321 and reiterated his arguments that it is not proved on the record that there was other severance of status with regard to the joint Hindu family properties between the brothers and their father Kundan Singh. I had already referred to the admission of the Plaintiff Babu Ram. Even from the statement of Rattan who appeared as D.W.2 it is clear that the family settlement took place between the parties. Sadhu Ram was given the land of village Akbarpur Tehi and the land situated in village Haripur Monda and Ganni Khera was partitioned in half shares. Further it is established that Sadhu Ram Defendant No. 2 was residing in village Akbarpur Tehi for the last about-5 years.

The counsel for the Appellant also submitted that it was incumbent on the part of Defendant No. 2 Sadhu Ram to implead Babu Ram Plaintiff and Rattan Defendant No. 3 as party in the earlier suit in which decree dated 11.9.1981 was obtained as the property was joint. The argument is not convincing. Under the family settlement, the Plaintiff was claiming the property. He impleaded his father Kundan as Defendant who admitted the factum of family arrangement. Rattan Defendant No. 3 has not given challenge to the said decree. Once the factum of family partition stands established, Babu Ram Plaintiff at this juncture cannot allege that there was no severance of status of joint family and there was no family settlement with regard to the joint family properties.

In the light of the above, I am of the considered opinion that this appeal is devoid of any merit and the same is hereby dismissed leaving the parties to bear their own costs.