Karan Amol Singh vs Bibi Margaret Sahiba & Ors.

Deepak Gupta, J.

The appellant-plaintiff has preferred the present Regular Second Appeal under Section 100 CPC, assailing the judgment & decree dated 29.11.2017 passed by learned Additional District Judge, Yamuna Nagar at Jagadhri, whereby his appeal against the judgment & decree dated 25.07.2013 passed by learned Civil Judge (Senior Division), Yamuna Nagar at Jagadhri, dismissing his suit for possession, has been dismissed.

The appeal is accompanied by two applications: CM-5123-C-2021, under Section 5 of the Limitation Act, 1963, for condonation of 489 days' delay in filing the appeal; and CM-5124-C-2021, under Section 151 CPC, for condonation of 236 days' delay in re-filing it.

The matter is at the motion stage, and notice has not been issued to the respondents. Learned senior counsel for the appellant has been heard at length on the applications and on the main appeal, and the paper-book has been perused.

Briefly stated, the appellant is the only son of late Tikka Rattan Amol Singh. As a minor, through his mother as next friend, he had challenged a partition between his father and his uncle, Kanwar Lal Amol Singh, and the sales made by Kanwar Lal Amol Singh. That suit was dismissed on 07.04.1956. A Division Bench of this Court allowed RFA No. 135 of 1956 on 12.05.1965 [Baby Kiran Amol Singh v. Tikka Rattan Amol Singh, 1965(2) ILR (Punjab) 720], holding that the Buria Jagir property in question was inalienable and impartible, that succession to it was governed by the rule of primogeniture, and that the partition and alienations impugned in that suit would not affect the plaintiff's right as eldest son.

Now, the appellant instituted Civil Suit No. 594 of 1996 on 11.09.1996, seeking possession of land measuring 1401 Kanal 14 Marla, situated in village Sabhapur, Tehsil Jagadhri, District Yamuna Nagar, claiming that the same formed part of the Buria Estate, a Cis-Sutlej Jagir governed by the rule of primogeniture. According to the appellant, his father, Tikka Rattan Amol Singh, who had succeeded to the estate as the eldest son, held the property subject to restrictions on alienation. Despite such restrictions, he executed Gift Deeds No. 2360, 2361 and 2362 dated 31.12.1957 in favour of his daughters, defendants No. 1, 25 and 49, who subsequently alienated portions thereof to the other defendants. The appellant asserted that, upon his father's death in 1984, he succeeded to the entire estate as the only son under the rule of primogeniture and that the aforesaid gifts and subsequent alienations were ineffective against his rights in view of the Division Bench judgment dated 12.05.1965 titled Baby Kiran Amol Singh v. Tikka Rattan Amol Singh and others (supra) passed by this Court.

The suit was contested by the defendants, inter alia, on the grounds that the Jagir had stood resumed under the Punjab Resumption of Jagirs Act, 1957, and that the rule of primogeniture was no longer applicable in view of the Hindu Succession Act, 1956. It was further pleaded that the judgment dated 12.05.1965 was not binding upon them, as they were neither parties thereto nor were the present suit property and subsequent alienations the subject matter of those proceedings. The defendants also asserted that the subsequent purchasers had acquired the property for valuable consideration in good faith and were entitled to protection under Section 41 of the Transfer of Property Act, 1882. It was additionally pleaded that part of the suit land had been declared surplus and allotted under the Haryana Ceiling on Land Holdings Act, 1972, and that the suit was barred by limitation.

The learned trial Court, upon appreciation of the evidence, dismissed the suit on 25.07.2013. Among other things, it found that the suit land was not shown to be part of the property covered by the 1965 judgment, the appellant's own attorney (PW1 Gian Chand) having admitted this fact in cross-examination. It further held that the Hindu Succession Act governed the matter and that Section 5(ii) of that Act did not apply.

The learned First Appellate Court independently considered the contentions of the parties and affirmed the dismissal vide judgment dated 29.11.2017.

These applications seeking condonation of delay of 489 days in filing the present appeal, and 236 days in re-filing the same are being considered together, though the delay in initial filing and that in re-filing stand on somewhat different footings.

In the application seeking condonation of delay in filing, it is averred that the appellant resides in New Zealand and had instructed his General Power of Attorney, Shri Gian Chand Sehgal, to collect the relevant documents, obtain the opinion of a Senior Advocate and engage counsel at Chandigarh for filing the appeal. However, the attorney allegedly suffered from a heart ailment and could not take the necessary steps. It is further pleaded that upon his arrival in India on 26.04.2019, the appellant discovered that the appeal had not been filed, whereafter he personally handed over the papers to counsel, resulting in its institution on 30.05.2019.

Learned senior counsel for the appellant submits that the delay was neither intentional nor deliberate, particularly when the appellant, being a resident abroad, was dependent upon his attorney for pursuing the litigation. It is further contended that the appeal raises substantial questions of law concerning the binding effect of the judgment rendered in 1965 and, therefore, a liberal approach deserves to be adopted.

The legal position governing condonation of delay is well settled. Although the expression "sufficient cause" occurring in Section 5 of the Limitation Act, 1963, deserves a liberal construction so as to advance substantial justice, such discretion cannot be exercised in the absence of a reasonable and bona fide explanation. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Hon'ble Supreme Court held that the length of delay is not decisive; rather, it is the acceptability of the explanation, which constitutes the relevant consideration. Similarly, in Basawaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81, and Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649, it was emphasised that liberal construction does not extend to condoning delay attributable to negligence, inaction or lack of bona fides. These principles have been reiterated in Pathapati Subba Reddy (Died) by LRs and others v. Special Deputy Collector (LA), 2024 INSC 286, wherein it has also been clarified that the merits of the proposed appeal cannot substitute the requirement of establishing sufficient cause and that delay cannot be condoned merely by imposing costs where such cause is absent.

Examined in the light of these principles, the explanation furnished by the appellant for the delay of 489 days is found wanting in material particulars. The application does not disclose when the appellant acquired knowledge of the judgment dated 29.11.2017, when he instructed his attorney to pursue the appellate remedy, or when the latter allegedly became incapacitated on account of illness. Neither the duration of the alleged illness nor any supporting medical material has been furnished. Pointedly, the same attorney had been conducting the litigation on behalf of the appellant and had even appeared as a witness during trial. The appellant was also represented through counsel before the First Appellate Court. There is no explanation as to why instructions could not be conveyed to the counsel already engaged or why alternative arrangements were not made if the attorney was genuinely unable to act.

More importantly, the application does not disclose any effective step taken by the appellant between the pronouncement of the judgment on 29.11.2017 and his arrival in India on 26.04.2019, covering a period of approximately seventeen months. Mere residence abroad cannot, by itself, justify such prolonged inaction, particularly when communication with counsel or the attorney was not shown to be impracticable. The plea that the appellant had nothing to gain by delaying the appeal does not dispense with his obligation to demonstrate due diligence. The explanation, therefore, remains general and unsupported and fails to establish circumstances which reasonably prevented the appellant from approaching the Court within limitation.

The liberal approach as contended by learned senior counsel is intended to prevent genuine causes from being defeated on technical considerations; it does not authorise the Court to presume sufficient cause where the applicant has failed to disclose the circumstances accounting for a substantial period of delay. It is equally relevant that the suit concerns transactions dating back several decades and that the rights of the contesting respondents have been upheld by both the courts below. The principle that expiry of limitation confers a valuable right upon the successful litigant to treat the decree as final cannot be overlooked. Consequently, this Court finds no sufficient cause for condoning the delay of 489 days in filing the appeal.

As regards CM-5124-C-2021, the appellant has explained that the appeal, initially instituted on 30.05.2019, was returned with objections on 31.07.2019, whereafter the paper-book became mixed with another brief and was misplaced in counsel's office. Upon being traced, it was re-filed on 20.12.2019 but was again returned with objections on 18.01.2020. The subsequent delay has been attributed to further misplacement of the file and disruption of normal Court functioning during the COVID-19 pandemic.

It is well recognised that delay in re-filing is ordinarily examined with greater latitude than delay in the initial institution of an appeal, although a reasonable explanation is still required. In the present case, the plea of misplacement of the paper-book is undoubtedly general in nature. Nevertheless, having regard to the repeated return of the appeal by the Registry, the circumstances pleaded and the benefit of exclusion of the applicable period under the orders passed by the Hon'ble Supreme Court in In Re: Cognizance for Extension of Limitation, Suo Motu Writ Petition (C) No. 3 of 2020, (2022) 3 SCC 117, this Court considers it appropriate to adopt a liberal approach in respect of the delay in re-filing.

However, condonation of delay in re-filing cannot cure the independent and substantive delay of 489 days in the original institution of the appeal, for which sufficient cause has not been established. The two defaults are distinct, and indulgence granted in respect of the former does not confer any right upon the appellant to have the latter condoned. In view of the failure to satisfactorily explain the delay in filing, the appeal remains barred by limitation, irrespective of the grounds sought to be raised on merits.

Consequently, CM-5123-C-2021, seeking condonation of delay of 489 days in filing the appeal, is dismissed, whereas CM-5124-C-2021, seeking condonation of delay of 236 days in re-filing, is allowed. The latter order shall not affect the finding that the appeal was instituted beyond the prescribed period of limitation without sufficient cause. Accordingly, the regular second appeal also stands dismissed as barred by limitation.

Although the finding above concludes the appeal, but since learned senior counsel was heard at length on the main appeal, and since a second appeal can be admitted only if the Court is satisfied that a substantial question of law is involved, the Court also records, as an independent and alternative finding, that the appeal does not merit admission, even if the delay is taken to be condoned.

Learned senior counsel for the appellant has mainly contended that the courts below have failed to appreciate the binding effect of the Division Bench judgment dated 12.05.1965. It is submitted that the said judgment had conclusively determined the character of the Buria Estate, the applicability of the rule of primogeniture and the restrictions upon alienation. Once those issues stood decided between the appellant and his father, the defendants, claiming through the latter or his successors, could not reopen them. It is further argued that the Hindu Succession Act, 1956, as well as the legislation relating to resumption of Jagirs, was already in existence, when the Division Bench rendered its judgment in 1965. Therefore, according to learned counsel, the courts below could not disregard that judgment by invoking the same statutory provisions.

Having considered the submissions and examined the judgments of the courts below, this Court finds that the controversy requires examination of the nature and extent of the declaration granted in the earlier litigation, the identity of the property and transactions involved, the effect of subsequent statutory provisions, and the limitation governing the present claim.

The judgment in Baby Kiran Amol Singh v. Tikka Rattan Amol Singh and others (supra), undoubtedly constitutes an important adjudication concerning the Buria Estate, wherein the Division Bench held that the property involved in that suit was impartible and inalienable and that succession thereto was governed by the rule of primogeniture. It further held that the partition and alienations impugned in those proceedings would not affect the reversionary rights of the plaintiff as the eldest son of Tikka Rattan Amol Singh.

However, the declaration made in the earlier proceedings cannot be read in isolation from the subject matter of that litigation. The Division Bench was concerned with particular alienations and the rights of the plaintiff in relation thereto. The judgment did not confer an unconditional and indefeasible title upon the appellant in respect of every property, which might, at any point of time, have formed part of the Buria Estate. Nor did it adjudicate upon the validity of all future transactions or determine the effect of subsequent events upon the rights of the parties.

The principle of res judicata, embodied in Section 11 CPC, undoubtedly prevents the parties and persons claiming under them from reagitating an issue, which has been directly and substantially in issue and finally decided by a competent Court. Nevertheless, for its application, the identity of the matter previously decided and its relevance to the subsequent proceedings must be established. A previous judgment cannot be extended to a different subject matter merely because the parties claim through the same family or because the properties are alleged to have a common historical origin.

In the present case, the courts below have recorded that the appellant failed to establish that the specific land involved in the present suit was covered by the earlier adjudication. Particular reliance has been placed upon the statement of PW1 Gian Chand, the appellant's general power of attorney, who admitted that the suit property was not the subject matter of the earlier proceedings. The First Appellate Court has also noticed that the alienations involved in the previous litigation were different from the subsequent transactions challenged in the present suit.

The distinction is material. A finding that the earlier judgment did not directly cover the present land does not necessarily mean that its declaration concerning the historical character of the estate is wholly irrelevant. However, the appellant was still required to establish, by legally admissible evidence, that the suit land continued to be governed by the same restrictions at the time, when the relevant rights accrued and that such restrictions rendered the transactions in question ineffective against him. The earlier judgment, by itself, could not dispense with that requirement.

The contention that the judgment dated 12.05.1965 was rendered after the commencement of the Hindu Succession Act, 1956 and the legislation concerning resumption of Jagirs also deserves consideration. The mere fact that a statute was in force when an earlier judgment was delivered does not mean that every question concerning its application to subsequent transactions or subsequently accruing rights must be treated as conclusively decided. The binding effect of a judgment extends to matters actually and necessarily determined, and not to every legal consequence, which might conceivably arise in future.

In this context, Section 4 of the Hindu Succession Act, 1956 gives overriding effect to the provisions of that Act over inconsistent customs and usages in matters governed by it. Section 5 provides for specified exclusions from its operation. Whether a particular estate or property falls within any such exclusion has to be determined in accordance with the statutory requirements. The courts below have considered these provisions and have found that the appellant failed to establish that the suit property continued to enjoy a legally recognised exemption from the ordinary law of succession.

Equally, the resumption of a Jagir and the extinguishment of the incidents attached to its tenure cannot be equated, without further examination, with the extinction of every private proprietary right in the land formerly comprised in that Jagir. Nevertheless, where the claim to exclusive succession is founded upon the special incidents of the Jagir, the claimant must establish that those incidents continued to govern the property notwithstanding the statutory changes. The appellant has failed to establish such an enforceable right in respect of the suit land on the evidence accepted by the courts below.

Another material circumstance is that the transactions involved the present suit are distinct from those considered by the Division Bench. The First Appellate Court has specifically referred to sale deeds dated 07.06.1973, 10.01.1975 (Ex.D-9), 10.03.1975 (Ex.D-10), 25.04.1982 (Ex.D-13), 28.04.1982 (Ex.D-12) and 04.05.1982 (Ex.D-14). The land was purchased by different defendants from persons, whose names stood reflected in the revenue record. The courts below have recorded findings regarding the consideration paid, the inquiries made by the purchasers and the absence of proof that they had notice of any defect in their vendors' title.

The protection under Section 41 of the Transfer of Property Act, 1882 is not available merely because a purchaser has paid consideration and relied upon revenue entries. The requirements of ostensible ownership with the express or implied consent of the persons interested in the property, reasonable care to ascertain the transferor's authority, and good faith must be satisfied. However, even leaving aside the question of protection under Section 41, the appellant must independently establish a subsisting title and a right to recover possession. The concurrent findings that he failed to establish such a right are founded upon appreciation of the evidence and cannot be displaced merely by invoking the earlier judgment.

The question of limitation is also important. The appellant's father admittedly died in 1984, whereas the present suit was instituted on 11.09.1996. The appellant was a major when his father died. The courts below have held the suit to be barred by limitation, having regard to the dates of the transactions and the institution of the suit.

However, there is a distinction between a suit for cancellation of an instrument and a suit for possession founded upon title. Where the plaintiff is not an executant of the instrument and claims that the transaction is not binding upon his independent title, the mere existence of a registered sale deed does not necessarily attract the three-year period prescribed by Article 59 of the Limitation Act, 1963. A suit for possession based on title is ordinarily governed by Article 65, under which the relevant inquiry concerns the commencement of adverse possession. The Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh v. Randhir Singh, (2010) 12 SCC 112, has explained the distinction between cancellation of an instrument by its executant and a declaration sought by a non-executant.

Consequently, the observation of the First Appellate Court that the appellant was necessarily required to institute the suit within three years of the sale deeds or his father's death cannot be accepted as an unqualified statement of law. The question of limitation has to be examined with reference to the nature of the relief, the title asserted, the date on which the right to possession accrued and the character and duration of the defendants' possession. Nevertheless, this legal distinction does not, by itself, establish the appellant's entitlement to a decree. The appellant must first establish the title upon which his claim for possession rests.

The present suit was founded substantially upon the assertion that the appellant had acquired exclusive ownership of the property by operation of the rule of primogeniture and that the alienations were ineffective against his rights. Both courts below have declined to accept that foundation in respect of the suit property. Even if the question of limitation is examined independently of the three-year period referred to by the First Appellate Court, the appellant cannot succeed without establishing his title and the consequent right to possession. Therefore, any error in the reasoning concerning the precise article of limitation would not, in the circumstances of the present case, justify interference with the ultimate decree.

The reliance placed upon the earlier Division Bench judgment also cannot overcome this fundamental difficulty. The said judgment undoubtedly binds the parties and their privies concerning matters finally adjudicated therein. However, it does not dispense with proof of the appellant's entitlement to the property involved in the present proceedings. Nor does the principle of res judicata prevent consideration of subsequent transactions, statutory changes or rights which were not the subject matter of the earlier adjudication.

It is equally noteworthy that the earlier judgment protected the reversionary interest of the plaintiff against the alienations then under challenge. Such protection was not equivalent to a decree for immediate possession of all properties comprising the estate. The right to recover possession upon the opening of succession had to be established with reference to the law applicable to the property and the rights subsisting at the relevant time. The appellant cannot claim an automatic decree for possession merely because an earlier judgment had recognised his reversionary rights in relation to particular transactions.

The First Appellate Court, being the final Court on facts, has considered the oral and documentary evidence, the revenue entries, the transactions relied upon by the defendants and the earlier judgment. Its conclusions that the appellant failed to establish an enforceable right to possession of the suit land do not disclose such perversity or disregard of material evidence as would warrant interference under Section 100 CPC.

The jurisdiction of this Court in a second appeal is confined to substantial questions of law. Reappreciation of evidence or substitution of another possible factual conclusion is impermissible merely because a different view may also be conceivable. Reference may be made to Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179; Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545; and Nazir Mohamed v. J. Kamala, (2020) 19 SCC 57.

The questions proposed in the memorandum of appeal, particularly those concerning res judicata, the rule of primogeniture, the effect of the Hindu Succession Act and the earlier Division Bench judgment, have been considered in the foregoing discussion. They do not, on the findings recorded in the present case, give rise to any substantial question of law requiring admission of the appeal. The concurrent dismissal of the suit does not warrant interference.

As a result, the Regular Second Appeal is dismissed as barred by limitation. Even otherwise, upon examination of the grounds urged by the appellant, no substantial question of law arises for consideration under Section 100 CPC. The judgments and decrees passed by the courts below, therefore, call for no interference.

All pending miscellaneous applications, if any, stand disposed of accordingly. No order as to costs.