Kundan Lal and Others vs Hukam Singh and Others

Kapur, J.—This is an appeal against a judgment and decree of Mr. Tek Chand Vij, Senior Subordinate Judge, Jullundur, affirming the decree of the trial Court.

A widow, Ishri, was the occupancy tenant as a widow of her husband. She made a gift of it to Ganda, and a declaratory suit was brought by defendants Nos. 1 to 4 claiming to be the collaterals of Ishri''s husband. There was a compromise between the donee and these defendants by which a decree was passed in favour of defendants 1 to 4.

2a. The landlords then brought the suit out of which this appeal has arisen for declaration that the decree was collusive and was ineffective as regards their rights and that the suit by defendants 1-4 had been brought merely to create evidence against them. Both the Courts have held in favour of the plaintiffs and the defendants have come up in appeal to this Court.

The first question that has been raised is that the suit was premature and at any rate the landlords had no right to bring the suit. There is no doubt that by the compromise which was entered between defendants Nos. 1 to 4 and Ganda an attempt was made to create evidence in favour of defendants Nos. 1 to 4, Besides, this is a cloud on the ultimate rights of the landlords and they had a right to bring the present suit, and I respectfully agree with the rule laid down in ''Bhagat Singh v. Mathra AIR 1926 Lah 275 where it was held that where evidence is being created, it brings the case within Section 42 of the Specific Relief Act and a suit can be brought under that section (Section 42) for declaration.

It is then submitted that the finding in regard to the relationship of defendants Nos. 1 to 4 with Ishri is wrong, because the learned Judge has relied upon a judgment of the Lahore High Court in ''Hazura Singh v. Mohindar Singh ILR (1937) Lah 732. The correctness of this judgment is assailed on the ground that this was not followed in another judgment of the Lahore High Court, ''Dogar Mal v. Sunam Ram AIR 1944 Lah 58.

I am of the opinion that in regard to Pandas'' ''bahis'' such as the ones which were produced in this case, which have got no index, in which several new pages have been added and in which it is not known as to who the writer of the particular entries was, the findings of the Courts below are right, and in my opinion the view taken by the Lahore High Court in ''Hazura Singh''s case ILR (1937) Lah 732 seems to be correct in regard to these ''bahis''. This judgment was again followed in a Single Bench judgment of the Lahore High Court in ''Mt. Nanhi v. Badlu AIR 1940 Lah 245.

I am therefore of the opinion that this appeal must fail and the suit of the plaintiffs decreed with costs throughout.