Jarnail Singh and Another vs Ram Singh

R.L. Anand, J.—This is a defendant''s appeal and has been directed against the judgment and decree dated 7.2.1980 passed by Additional District Judge, Hoshiarpur, who allowed the appeal of the plaintiff by setting aside the judgment and decree of the trial Court dated 18.2.1977 and decreed the suit of the plaintiff (now respondent in this court) for possession of the site described in the head-note of the plaint and site plan after removal of the malba of the super-structure and hand-pump, if any.

The pleadings of the parties can be described in the following manner:-

Ram Singh son of Haria Ram son of Chandu through Sher Singh son of Dalip Singh, attorney, filed a suit for possession against Jarnail Singh and his father Ujjagar Singh (now appellants) of site EFBCDA shown as red in the site plan Ex.P 1 attached with the plaint situated in the abadi of village Panam and the case set up by the plaintiff that the site EFBDA was sold by Nathu Ram vide a registered sale-deed to Kehar Singh son of Dalip Singh and Dilbag Singh son of Surjan Singh of village Panam for Rs. 2,000/- It may also be mentioned here that aforesaid Kehar Singh is none else but the real brother of Sher Singh, attorney of the plaintiff. Haria-Ram, who was the father of Ram Singh plaintiff and brother of Nathu Ram vendor filed a suit for possession by way of pre-emption in the year 1968 and got a decree for possession on payment of Rs. 2,000/- on 29.3.1969 from the Court of Sub Judge, Garhshankar. He also got the possession through Court after depositing the pre-emption money in the court in the year 1969. It was alleged that defendants tried to purchase the site in dispute from Haria Ram and to achieve object they put pressure upon Haria Ram. Defendant No. 1 Jarnail Singh fabricated a pronote in his favour for an alleged consideration of Rs. 8,000/- and he even filed a suit for recovery of Rs. 9,500/- against Haria Ram in the Court of Sub Judge 1st Class, Garhshankar. Haria Ram denied the execution of the pronote and the consideration. The thumb impressions purporting to be of Haria Ram were sent to the Handwriting Expert for comparison and it was found that the pronote propounded by Jarnail Singh did not bear the thumb impression of Haria Ram, who made an application in the Court for prosecution of Harnail Singh for committing forgery and perjury. Defendant No. 1 and his counsel became absent in that suit which was dismissed on 16.6.1972 for want of prosecution and as a result of that the application moved by Haria Ram for prosecuting Jarnail Singh was also dismissed. It was maintained by the plaintiff that after the dismissal of the suit, the defendants illegally and forcibly took the possession of the site in dispute in July, 1972 for which a complaint u/s 447 I.P.C. was lodged in the Court. The Court refused to summon the defendants and dismissed the complaint without recording the statement of Haria Ram. The defendants felt emboldened with the dismissal of that complaint and they constructed a pucca wall and also installed a hand-pump on the disputed site. Haria Ram before his death made a will in favour of Ram Singh plaintiff bequeathing his entire property and in this manner the plaintiff has the locus standi to file the suit for possession.

The suit was contested by the defendants. According to them, the property in question is an evacuee property and, therefore, the Civil Court has no jurisdiction to try the suit; that the suit is bad for non-joinder of necessary parties, i.e. Union of India and State of Punjab; that the suit is barred by time; that the plaintiff is estopped by his own act and conduct from filing the suit. On merits, the stand of the defendants was that some Muslims were the owners of the site. They migrated to Pakistan after the partition of the country and the suit property became the evacuee property. It was later on transferred to the State of Punjab in a package deal and then it was purchased by defendant No. 1 from the concerned authorities and a sale certificate was issued to him on 19.6.1972. Thus the defendants are in possession of this property since 1950. The allegations with regard to pronote were refuted and it was stated that Haria Ram executed a pronote and received a sum of Rs. 8,000/- from Jarnail Singh.

The above pleadings of the parties gave rise to the following issues:-

Whether the plaintiff is owner of the site in dispute? OPP

Whether this court has got no jurisdiction to try this suit as alleged? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether Sher Singh is the duly appointed Mukhtar of the plaintiff? OPD

Whether the plaintiff is estopped from suing as alleged? OPD

Whether the suit is within time? OPP

Whether Haria deceased executed a valid will in favour of the plaintiff? OPD

Relief.

The parties led oral as well as documentary evidence and on the conclusion of the trial issue No. 1 was decided against the plaintiff. Issues Nos. 2 to 5 were decided against the defendants. Issue No. 6 was decided against the plaintiff. No finding was given with regard to issue No. 7 in view of the dispute between the heirs of Haria regarding the execution of will Ex.P5 allegedly executed in favour of Ram Singh. Finally the suit of the plaintiff was dismissed with costs.

The trial court made the following observations while disposing of issue No. 1, which is a material issue in this case :-

"The point for decision is whether Nathu or Haria were in fact the owners of the site in dispute or whether it was evacuee property and allotted to defendant No. 1."

In this view of the matter, this Court is of the considered opinion that the trial court rightly appreciated the controversy which was between the parties because the case set up by the plaintiff is that he had inherited this property from his father Haria Ram, who got it from Nathu Ram, his brother, in a suit for pre-emption. The trial Court also held in para No. 11 of the judgment as follows:-

"Ex.P3 is copy of the site plan said to have been produced by Nathu in his suit for partition. A taur shown in pink colour thereon is said to have fallen to the share of Nathu. It is 9 karams wide in north and south, 13 Karams in length on the east and 17 Karams in length on the west. On the east of this taur there was a passage, probably carved out by the northern plot allotted to Amir Khan defendant in that suit. On the south there shown to be a thoroughfare. On the west, there was the property of Ashrif Khan. Now about site plan, copy Ex.P.2 which is said to have been earlier produced in his pre-emption suit by Haria against Kehar Singh and Dilbag Singh. It is claimed o''n behalf of the plaintiff that Nathu had sold a taur as shown on Ex.P.2 in favour of Kehar Singh and Dilbag Singh. The boundaries of this taur, however, do not tally with those shown in the site plan Ex.P.3, which was said to have been purchased by Nathu Ram in an auction sale. The taur as shown on Ex.P.2 measures 65 feet each on the North and South and 100 feet each on the east and west. There is a passage on the western side. On the east of the taur is property of Dalip Singh (who is father of Sher Singh PW4 and grandfather of Mohinder Singh PW5). Ex.P.1 gives the same dimensions and boundaries as those mentioned on Ex.P.2. It is evident from a cursory perusal of the site plans Ex.P.2 and Ex.P.3 that they are of different taurs. Converted into Karams, the northern and southern boundary of the taur shown on Ex.P.2 would be 13 Karams each and the eastern and western boundaries about 20 karams each. On the west there is shown to be a gali in Ex.P.2, whereas on the plan Ex.P.3 there was the property of one Ashrif Khan to the west. No passage is shown on the site plan Ex.P.2 to the east of the taur, whereas there is a passage to the east of the taur on Ex.P.3."

It will also be beneficial for this Court to re-produce para No. 13 as follows:-

"13. Careful consideration of the evidence placed on the file leads me to the conclusion that Nath has not been proved to be owner of the site in dispute, and therefore, he could not transfer valid title in favour of Kehar Singh and Dilbag Singh, that there is no cogent proof whether Haria actually paid or deposited the money in court in consequence of the pre-emption decree or got possession in consequence of that decree and that being so the suit of Haria stood dismissed. I am also of the opinion that it is the heirs of Dalip Singh, nearly, Sher Singh PW4 and Mohinder Singh PW5 and others, who actually want to perpetuate their illegal possession over the excess area who have been instrumental in filing the suit. The site plan Ex.D.2 shows that the site which was purchased by Nathu and is shown on Ex.P.3 lies to the east of the site now in dispute. That site is now in the possession of Dalip Singh and his heirs."

The trial Court also gave the finding that from the evidence led by defendant No. 1 including the sale-deed Ex.Dl in his favour, it is dear that taur in dispute was an evacuee property. It was transferred to defendant No. 1 and, therefore, the Civil Court has no jurisdiction to entertain the suit because the property was an evacuee property. Finally, the suit of the plaintiff was dismissed on 18.2.1977.

Aggrieved by the judgment and decree of the trial court, the plaintiff filed the appeal before the Court of Addl.District Judge, Hoshiarpur, which allowed the same and granted a decree for possession by setting aside the judgment and decree of the trial Court. I can also produce the reasons which have been advanced by the first Appellate Court. Before I do it, I may mention that even the Appellate Court though appreciated the real controversy between the parties as to whether Nathu Ram or Haria became the owner of the taur in question, yet the first Appellate Court admitted "there is no direct evidence on this point". Meaning thereby, there is no direct evidence available that Nathu Ram or Haria had become the owner of the site in dispute. If this was the situation, how the first Appellate Court could grant a decree for possession in favour of the plaintiff by making out a case of title in his favour. The first Appellate Court also held as follows:-

"It is true that there is no evidence that Nathu Ram has acquired the area towards the North of the area shown in red colour in Ex.P3. It is also true that Nathu Ram appearing as PW2 has not deposed that he is the owner of the area towards the North of the site shown in red colour in Ex.P3. However, in view of the fact that Kehar Singh and Dilbagh Singh purchased the suit property from Nathu Ram is a sufficient evidence to the effect that Nathu Ram was the owner of the entire suit property. Sale was effected by Nathu Ram in 1965 and the suit for pre-emption was filed in 1966 and decreed in 1969, when the sale certificate was issued in his favour. There is no allegation in the written statement that the decree for possession by pre-emption was obtained by fraud and collusion."

In the opinion of this Court the approach of the first Appellate Court was wrong. The first Appellate Court totally forgot the fact that it was going to decree the suit of the plaintiff and in these circumstances the plaintiff has to prove his title with respect to the site in question. When Nathu Ram had no title with respect to the site in question, how Haria could get a title with respect of that very site. Once Haria cannot get a title, he could not pass a better title to Ram Singh. The first Appellate Court also has not taken a note of the fact that Ram Singh plaintiff has not appeared in the witness box. His suit has been filed through Sher Singh, who is none else but the real brother of Kehar Singh, who was the alleged vendee of the site in dispute from Nathu Ram. The plaintiff had been seeking the assistance of Mohinder Singh PW5, who again is none else but the son of Kehar Singh. Thus, it can be easily inferred that, in fact, somebody else was fighting the litigation through proxy in the name of Ram Singh.

Be that as it may, we have to see whether Nathu Ram was in fact, the owner of the site in question. The case set up by the plaintiff was that the entire area covered by Ex.Pl was sold by Nathu Ram through registered sale-deed 2.9.1965 Ex.P4 to Kehar Singh son of Dalip Singh and Dilbagh Singh son of Surjan Singh and this sale was preempted by Haria Ram, the father of Ram Singh plaintiff and a decree was passed on 29.3.1969 on payment of Rs. 2,000/- by the Court of Sub Judge 1st Class, Garhshankar and so. much so the possession of the site in question was also taken in the year 1969 after depositing the pre-emption money. In these circumstances, it was obligatory upon the plaintiff to establish that the site regarding which the present suit has been filed was the same which was sold by Nathu and was pre-empted by Haria Ram. If the identity of the property is not established, how the suit can be decreed in favour of the plaintiff. The trial Court has rightly discussed this aspect of this case in para No. 11 of this judgment by holding that the perusal of the two site plans Ex.P2 and Ex.P3 would show that there were different taurs I have already quoted above with approval the observations made by the trial Court in para No. 11 of the judgment. On the contrary, the sale-deed Ex.D1 shows that taur in dispute was an evacuee property and it was sold to defendant No. 1 vide Ex.D1. If the property is held to be evacuee, it has become the basic law by this time that Civil Court will not entertain any suit to determine whether the property is evacuee one or otherwise. After going through both the judgments of the trial Court as well as the first Appellate Court, I am of the considered opinion that the plaintiff has not been able to establish that the site in dispute at any point of time was the ownership of Nathu Ram and as such he could not pass a valid title to Haria Ram. The property which was sold by Nathu Ram was totally a different one. I am also inclined to hold that the site in dispute, in fact, was an evacuee property and was validly purchased by defendant No. 1 Jarnail Singh.

In this view of the matter, 1 allow this appeal, set aside the judgment and decree of the first Appellate Court and dismiss the suit of the plaintiff-respondent, as rightly done by the trial court, with no order as to costs.