Lachhman Dass and Others vs Krishan Lal and Others

Surinder Gupta, J.—This Regular Second Appeal has arisen out of the judgment dated 08.08.1996 passed by the First Appellate Court allowing the appeal filed by Krishan Lal @ Kishan Lal-defendant No. 4 against the judgment dated 15.03.1984 passed by the Trial Court whereby the suit of the plaintiffs-appellants (hereinafter referred to as the plaintiffs) was decreed. The case of the plaintiffs in brief is that they purchased 15 Kanals, 8 Marlas of land situated in village Gill from Krishan Lal and Joginder Lal sons of Mohan Lal. The vendors were three brothers and they represented at the time of sale that the land being sold i.e. 15 Kanals, 8 Marlas had fallen to their shares in family partition. This fact was also so mentioned in the sale deed (Ex. P-1). The plaintiffs were put in possession of the land purchased by them. However, in the revenue record 1/3 shares out of the purchased land continued to be recorded in the name of Bishan Lal. In consolidation proceeding, the share of Bishan Lal was given a new Khasra numbers i.e. Khewat No. 26, Khatauni No. 59, Rect. No. 10 Khasra No. 1/1/3 measuring 3 Kanals 19 Marlas.

After the death of Bishan Lal, the entry of his share was recorded in the revenue record in the name of defendant Nos. 1 to 3. (Legal heirs of Bishan Lal), who have no right or interest in the suit property. In the alternative, the plaintiffs have sought declaration of title and possession of the other land of defendant Nos. 4 and 5 i.e. Krishan Lal and Joginder Lal measuring 5 Kanals 2 Marlas situated in village Munak Kalan.

Defendant No. 1 denied any family arrangement in between Bishan Lal, Krishan Lal and Joginder Lal during the life time of his father. He also denied that the plaintiffs are in possession of the land of the share of his father-Bishan Lal which the plaintiffs alleged to have purchased before the sale deed (Ex. P-1) was executed. It has also been alleged that there is one more legal heirs of Bishan Lal, namely, Samittari Devi and the suit is bad for her non-joinder as party in this case.

Defendant No. 4 Kirshan Lal also contested the claim of the plaintiffs in the written statement. He admitted that Krishan Lal, Joginder Lal and Bishan Lal were real brothers and owned the land of 15 Kanals, 8 Marlas in Village Gill. He, however, denied any partition of land in between the brothers and the execution of the sale deed as well as possession of the plaintiffs over the suit land.

Defendant No. 5 did not file any written statement and was proceeded against ex parte. The plaintiffs re-asserted their cases in replication and the pleadings of the parties led to the framing of following issues by the learned Trial Court:

(1) Whether the plaintiffs are owners of the suit property by virtue of sale deed dated 24.06.63? if so, to what effect? OPP

(2) Whether the land in dispute was carved out of Khasra numbers as mentioned in para No. 2 of the plaint? OPP

(3) Whether the plaintiffs are entitled to the possession of 5 Kanals 2 Marlas of the land as mentioned in the head note? OPP

(4) Whether the suit is within time? OPP

(5) Whether the suit is bad for non-joinder of necessary party? OPD.

(6) Whether the plaintiffs are estopped to file the present suit by their act and conduct? OPD

(7) Whether the plaintiffs are entitled to declaration and possessions as prayed for? OPP

(8) Relief.

The trial Court recorded findings on issue Nos. 1 to 6 in favour of the plaintiffs whereas the findings on issue No. 7 were partly recorded in favour of the plaintiffs to the effect that they are not entitled to declaration regarding their being owners of Rect. Khasra No. 12/1/1/3, land measuring 3 kanals 19 marlas situated in village Gill but are entitled to possession of land measuring 5 Kanals 2 Marlas of land situated in village Munak Kalan as detailed in the heading of the plaint. The suit of the plaintiffs was decreed and the following reliefs were allowed:

In view of my findings, on the above issues, plaintiffs'' suit is decreed against the defendants No. 4 and 5 for possession of land measuring 5 Kanals 2 Marlas i.e. 3 Kanals out of Khasra No. 17219/1475 and 2 Kanals 2 Marlas out of Khasra No. 17541/1794 Khewat No. 179/297 and 548/839 situated in village Munak Kalan H.B. No. 505 as per Jamabandi for the year 1978-79 Ex. P-2.......

In appeal, the judgment and decree of the trial Court was set aside and the suit of the plaintiffs was dismissed. However, the sale deed (Ex. P-1) and the possession of the plaintiff over the suit land was upheld. Reliance was placed on the observations of the Bombay High Court in the case of Gulabchand Daulatram Vs. Suryajirao Ganpatrao, . The First Appellate Court concluded that the plaintiffs continued to be in possession of the land of Bishan Lal as such, they are not entitled to invoke indemnity clause, incorporated in the sale deed (Ex. P-1) and the suit is pre-mature.

I have heard learned counsel for the appellants and perused the paper book with their able assistance. The sale deed (Ex. P-1) is not a disputed document. Krishan Lal son of Mohan Lal himself appeared as PW-2 and admitted the sale deed (Ex. P-1). He has virtually proved the case of the plaintiff by stating that no partition took place between him and his brothers with regard to property at Village Gill and Munak Kalan. The mutation of the share of Bishan Lal, after his death, was sanctioned in favour of his legal representatives. He further admitted that the suit land of Village Gill is in possession of the plaintiffs. From the evidence on the file, it is amply proved that Krishan Lal, Joginder Lal and Bishan Lal were brothers. Krishan Lal and Joginder Lal represented to the plaintiffs that they have become the owners of the land measuring 15 Kanals and 8 Marlas in village Gill. This land has fallen to their shares in family arrangement. Now it is admitted fact that no such family arrangement has ever taken place. It was also mentioned in the sale deed that the vendors shall be liable to compensate the vendee for any damage caused, from their other land, if the entire or part of the subject matter of the sale (Ex. P-1) goes out of the title of the vendors. The vendors were not the owner of 1/3 share of the suit land and the same was recorded to be the ownership of Bishan Lal. This is also not disputed that in lieu of that 1/3 share of Bishan Lal for the land mentioned in the sale deed (Ex. P-1), he got 3 kanals, 19 Marlas of land in consolidation proceedings.

The substantial question of law which arises in this appeal is as to whether the plaintiffs are entitled to be compensated for the land of the share of Bishan Lal, which has gone out of their ownership due to misrepresentation of facts in the sale deed (Ex. P-1) by the vendors, as per the terms mentioned in the sale deed (Ex. P-1).

It is admitted that the vendors Kishan Lal and Joginder Lal owned the land at Village Munak Kalan as per jamabandi (Ex. P-2). As per the entries in the jamabandi (Ex. P-2), Krishan Lal and Joginder Lal have 2/3 share of land measuring 26 Kanals 14 Marlas bearing Khashra No. 17541/1794 and 17692/1942 and the land measuring 4 Kanals, 13 Marlas bearing Khashra No. 17219/1475.

Learned trial Court while recording the findings on issue No. 3 has observed as follows:

...........The contents of the sale deed reveal that there was a term in sale deed Ex. P-1 that if any part of land the subject matter of the sale deed Ex. P-1, goes out of the hands of the plaintiffs, the defendant No. 4 and 5 shall compensate them from their other lands. The sale deed Ex. P-1 was executed by Kishan Lal and Joinder Lal on the pretext that they are the absolute owners of the entire land, the subject matter of the said sale deed. It has come on record that share of Bishan Lal has not been mutated in favour of the plaintiffs and it has also been held that the plaintiffs are not owners of the Rect. Khasra No. 12/1/1/3, which portion of the land in fact was owned by Bishan Lal. As per the terms of the sale deed, Defendants No. 4 and 5 are required to compensate the plaintiffs from their other lands admittedly situated in Munak Kalan. The copy of Jamabandi for the year 1978-79 Ex. P-2 of village Munak Kalan shows defendants Kishan Lal and Joginder Singh to be owners of the land more than 5 kanals 8 marlas of land. Plaintiffs have been deprived of 5 kanals 2 Marlas of land out of the subject matter of sale deed Ex. P1. The land situated in village are as shown in copy of Jamabandi for the year 1975-76 Ex. P-3 is Chahi land and the land situated in village Munak Kalan owned by defendants No. 4 and 5 as per copy of Jamabandi Ex. P2 is also Chahi land. The nature of land, which has gone out of hands of plaintiffs is of the same nature which has been claimed by plaintiffs in the present suit as an alternative relief. Therefore, I hold that the plaintiffs are entitled to possession of 5 kanals 2 marlas of land as mentioned in the headnote of the plaint..........

It was argued before the First Appellate Court that the possession of the land of the share of Bishan Singh was still with the plaintiffs as such they are not entitled to the possession of the land measuring 5 Kanals 2 Marlas out of the land of Krishan Lal and Joginder Lal in the village Munak Kalan and their suit was premature, hence not maintainable. The observations of the First Appellate Court to this effect are as follows:

Concededly, the vendee-plaintiffs remained in possession of the land sold to them vide the sale deed (Ex. P-1) as well as that allotted in consolidation of Land Holdings in lieu thereof. Indeed, concededly they are still in possession of it. Evidently, the indemnity clause contained in the sale deed (Ex. P-1) was not broken and, therefore, was not rendered-enforced on the date of the cause in hand. Needless to say that they were not entitled to the possession of the suit land measuring 5 Kanals 2 Marlas situated within the revenue estate, Munak Kalan. Starling consequence of the decree awarded vide impugned judgment was that the vendee-plaintiffs were in possession of the whole of the land purchased vide the sale deed (Ex. P-1) and further they were found entitled to the possession of the suit land measuring 5 Kanals 2 Marlas by way of compensation from the loss of the land which, in reality had not taken place. In other words, they were double benefited in the assumption of the breach of the covenant contained in the sale deed which in reality, had not been broken either on the date of the cause in hand or earlier to it.

Inevitable conclusion, therefore, that, in relation to the sought for relief of possession of the suit area measuring 5 kanals 2 marlas, the cause in hand was pre-mature and was not competent.

This fact has, however, been admitted by the First Appellate Court that no domestic partition of the land measuring 15 Kanals 8 Marlas situated in village Gill took place between three brothers, namely, Krishan Lal, Joginder Lal and Bishan Lal and each one of them had 1/3 share in it. Consequently, the mutation of only 2/3 share of Krishan Lal and Joginder Lal was sanctioned in favour of the plaintiffs. In para 10 of the judgment of the First Appellate Court, it has been observed as under:

And lastly, in respect of the one-third share of Bishan Lal in the land measuring 15 Kanals 8 Marlas situated in the revenue estate Gill, the sale was rightly found to be void in the lower Court. Vendee-Plaintiffs were thus, right not granted the declaration of ownership qua the suit land measuring 3 kanals 19 marlas comprised in the revenue Kh. No. 10R/1/1/3 which in fact, was allotted in consolidation in lieu of one-third share of Bishan lal in the area measuring 15 Kanals 8 Marlas (ibid).

It is clear from the perusal of the observations of the First Appellate Court that there are material contradictions in its observations. This fact has been admitted that the sale of 1/3 share of Bishan Lal by his brothers Krishan Lal and Joginder Lal was illegal, null and void. As per the terms mentioned in the sale deed (Ex. P-1), the plaintiffs were required to be compensated from the other land of vendors with regard to loss of the land, which has gone out of their hands. The plaintiffs have got right available with them to claim the equivalent land, they have lost due to misrepresentation of the facts by the vendees in the sale deed (Ex. P-1).

The First Appellate Court has relied upon the observations made by the Bombay High Court in Gulabchand Daulatram''s case (supra). I have gone through the contents of the judgment wherein the observations, as relied upon by the First Appellate Court in para 7 of the judgment, have been made in different set of facts and circumstances. The facts of the case as discussed in Gulabchand Daulatram''s (supra) have been discussed in para 2 of the judgment, which are as follows:

The Court of Wards assumed the management of the estate of one Ganpatrao Sagajirao Nimbalkar sometime in June, 1907. The estate remained in the management of the Court of Wards till June 1917. The management was then withdrawn and the estate was re-entrusted to Ganpatrao. By reason of the provisions of S. 40, proviso 3, Bombay Court of Wards Act, I(1) of 1905, no land-holder, who has been made a Government Ward in pursuance of S. 9(1) of the Act, is competent on the withdrawal of the superintendence of the Court of Wards to transfer or create any charge on or interest in his property or any part thereof beyond the term of his natural life, except with the previous sanction of the Collector. Ganpatrao owned among other properties two houses, Municipal Census Nos. 822 and 230, at Bhusawal, which will hereafter be referred to as the suit houses. By a sale deed dated 18.05.1918, Ganpatrao sold the suit houses to the plaintiff''s brother, Onkardas Daulatram, and his cousin, Kanhaiyalal Vithaldas, for Rs. 1,000 and the delivered possession to them. Under the sale deed Ganpatrao purported to convey an absolute interest in the property to the vendees. It does not appear that either the vendor or the vendees were aware of the statutory disability imposed on Ganpatrao by reason of Proviso 3 to S. 40, Bombay Court of Wards Act. The transaction appears to have been open and honest, and the invalidity of it beyond the lifetime of Ganpatrao was not present to the mind either of Ganpatrao or of the vendees............

In the aforesaid case, the vendee has filed a suit claiming damages for breach of covenant for title and quiet enjoyment. The damages were allowed by the Trial Court. In para 18 and 19 of the judgment, the Bombay High Court has observed as under:

Now, it is true that the tile of the plaintiff to the property terminated on the death of Ganpatrao, but if in the case of a suit filed for compensation for breach of a covenant for quiet enjoyment under a sale, which was void or voidable, the period of limitation commences to run from the date of dispossession, it is difficult to appreciate any ground on which a different rule should apply to a case in which compensation for breach of a covenant for quiet enjoyment is claimed where the sale was good until a certain event happened, and on the happening of that even, the sale became void.

In my view, the consensus of judicial opinion is consistent with the essential nature of the covenant of title and quiet enjoyment. A covenant for title and quiet enjoyment involves a right to undisturbed possession and this covenant remains effective so long as the vendee is in quiet enjoyment or possession. The covenant becomes enforceable in case there is obstruction or dispossession and cannot obviously be broken on the date either of the sale or the happening of the future event, which terminates the title of the vendee. A breach of the covenant can occur only on the disturbance of the vendee''s possession. So long as the vendee remains in possession, he suffers no loss which would sustain an action for damages for breach of the covenant. In my view, therefore, the lower Courts were right in holding that the suit was within time.

The present case is of apparent misrepresentation of facts in the sale deed (Ex. P-1). The plaintiffs have lost the title of 1/3 share of the land measuring 15 Kanals 8 Marlas which they had purchased from Krishan Lal and Joginder Lal. The question here is that they are entitled to be compensated for the land of which they have lost the title. The fact that they are in possession of share of Bishan Lal is not a relevant to deny them the right to claim the equal land, the title of which they have lost due to the misrepresentation of the facts in the sale deed by Krishan Lal and Joginder Lal. As per the terms of the sale deed they are entitled to 5 Kanals 2 Marlas of land out of share of vendor of sale deed (Ex. P-1) which they have own and possess at Village Munak Kalan.

The First Appellate Court has committed a grave error of law and fact while accepting the appeal and setting aside the judgment of the trial Court. It has been pointed out by the learned counsel for the appellant that during the pendency of the suit, the LRs of Bishan Lal has sold 2 Kanals 2 Marlas of land from the land measuring 5 kanals 2 marlas situated in village Munak Kalan vide two sale deeds dated 16.04.2010. Jamabandi of the land of Village Munak Kalan show that Krishan Lal and Joginder Lal had 2/3 share in land measuring 26 Kanals 14 Marlas and 4 Kanals 3 Marlas which comes to more than 12 Kanals as such, the sale of small piece of land by the LRs of Bishan Lal does not effect the right of the plaintiffs in any manner. The substantial question of law as mentioned in para 10 is answered in favour of appellants and in view of my above discussion, this appeal is accepted with costs; judgment and decree of the First Appellate Court is set aside and that of Trial Court is affirmed with modification that the plaintiffs are held entitled to be compensated to the extent of 5 Kanals, 2 Marlas i.e. 2 Kanals, 11 Marlas of each out of the land of Krishan Lal and Joginder Lal, situated in village Munak Kalan as per Jamabandi (Ex. P-2), in lieu of the share of Bishan Lal sold vide sale deed (Ex. P1). The plaintiffs can get the mutation of the land to that extent sanctioned in their names. Before getting the mutation sanctioned, they will surrender the possession of 3 Kanals and 19 Marlas situated in Village Gill belonging to Bishan Lal in favour of his LRs and get the entry of the surrender of possession recorded with the Village Patwari and make the statement to this effect in the Court. However, if the plaintiffs failed to get the land measuring 5 kanals 2 marlas from the share of Krishan Lal and Joginder Lal, as mentioned above due to reasons of non-availability of land because of sale or otherwise, they will be entitled to the claim compensation/damages for the loss of land sold as per sale deed (Ex. P-1), which shall be ascertained by the trial Court in execution proceedings itself. The above relief is being allowed to the plaintiffs keeping in view the facts and circumstances of the case and to meet the ends of justice, in view of the protracted litigation in between the parties for the last 29 years. It will be travesty of justice if the appellants are made to file fresh suit to establish their claim of compensation/damages, if any, before the trial Court. However, it will be appropriate to clarify that the plaintiffs have purchased the agricultural land, as such, they will get the land from the share of Krishan Lal and Joginder Lal out of their agricultural land and not from the land, which is being used for residential purpose as per entry in the Jamabandi for the year 1978-79 (Ex. P2).