Major Singh vs Joginder Singh and Another

R.K. Nehru, J.—Defendant appellant (hereinafter the defendant) has come up in Regular Second Appeal against the Judgment and decree of the first Appellate Court dated September 5, 1979 partially modifying those of the trial Judge.

In order to appreciate the dispute between the parties, it will be better to reproduce their pedigree-table as under:-

Ram Singh Nigahia Teja Singh Darbara Singh Ujagar Singh Joginder Singh (plaintiff).

Nigahia and Teja Singh owned the Suit land with half share each. Nigahia was succeeded to by his three sons namely, Darbara Singh, Ujagar Singh and Joginder Singh. Ujagar Singh died on April 19, 1945 and his share was mutated in the name of his widow Smt. Jangir Kaur. Smt. Jangir Kaur remarried Joginder Singh, in the Karewa and it is alleged that from this wedlock, Major Singh defendant and one Dhiraj Singh were born. Joginder Singh otherwise remarried Smt. Dalip Kaur who gave birth to two sons namely, Zora Singh and Nirmal Singh. Darbara Singh died on May 27, 1952 and his estate was mutated in the names of Sm. Jangir Kaur and Joginder Singh in equal shares. Smt. Jangir Kaur died on March 13, 1968 and her share was mutated in favour of Major Singh, Dhiraj Singh sons and Joginder Singh husband in equal shares. Teja Singh bequeathed his estate in favour of Major Singh, Zora Singh and Nirmal Singh sons of Joginder Singh became the owner of 1/3rd share in the state of Nigahia Singh while Major Singh and Dhiraj Singh got 1/4th, share each. Joginder Singh and Dhiraj Singh (hereinafter the plaintiffs filed a suit for perpetual injunction restraining the defendant from interfering with the possession of the plaintiffs over the suit land.

The defendant contested the claim and averred that he being the son of Ujagar Singh was entitled to his estate and that the mutation of inheritance of Ujagar Singh sanctioned in favour of Smt. Jangir Kaur did not effect him.

From the pleadings of the parties, the following issues were framed:-

1) Whether the plaintiff No. 1 is the owner of the suit land to the extent of l/3rd share and plaintiff No. 2 is the owner of l/12th share ? OPP.

2) Whether the plaintiffs are entitled to the permanent injunction so far ? OPP

3) Whether the defendant is the son of Ujagar Singh deceased and as such is entitled to succeed to his share of his property ? OPD

4) Whether the suit is bad for non-jointer of necessary parties ? OPD

5) Relief.

Learned trial Judge held that the defendant was the son of Joginder Singh and that the property was correctly mutated in favour of the defendant and the plaintiffs. It ultimately passed a decree restraining the defendant from interfering with the possession of the plaintiffs regarding 8/24th share of the land in suit except in due course of law.

Aggrieved against the judgment and decree of the learned trial Judge, the defendant assailed the same in the first appeal.

The main dispute raised before the first Appellate Court was whether the defendant was the son of Ujagar Singh or of Joginder Singh. The first Appellate Court on appraisal of the evidence held that the defendant was the son of Joginder Singh and not of Ujagar Singh. Learned first Appellate Court also came to the conclusion that the estate of Smt. Jangir Kaur (Widow of Ujagar Singh) who after the death, remarried Joginder Singh was correctly mutated in favour of Major Singh and Dhiraj Singh, sons, born to her through Joginder Singh and Joginder Singh in equal shares. The first Appellate Court found that the parties to the lis were in possession of the joint land as co-sharers and none was in exclusive possession of a particular field number and after so holding, the first Appellate Court modified the decree of the trial Judge which had granted a decree for prohibitory injunction against the respondents to that of declaration as prayed for in the plaint.

Learned counsel for the defendant urged that he was the son of Ujagar Singh and not that of Joginder Singh. Both the courts below on appraisal of evidence brought on record correctly came to the conclusion that the defendant was the son of Joginder Singh. The Court took a note of the fact that the defendant was born on April 15, 1946 whereas Ujagar Singh died on April 19, 1945, and thus could not be born from the loins of Ujagar Singh. It is essentially a finding of fact not open to challenge in the second appeal.

Learned counsel for the defendant then submitted that the suit as framed was not maintainable. Be that as it may, the plaintiffs cannot be deprived of the relief which they are found entitled to on the proved facts of the case. The frame of the suit is immaterial. Under Order 41 Rule 33 of the Code of Civil Procedure, it is the Court which has to formulate the relief to which a party to the lis is entitled to. The first Appellate Court determined the shares of the parties in the suit property and granted a declaration to that effect. The declaration amounts to a decree for joint possession in favour of the plaintiffs. The first Appellate Court found that the property was still jointly owned by the parties and it has not been partitioned. So, the first Appellate Court modified the relief from prohibitory injunction to a decree for declaration and on the proved facts of the case, a decree for declaration is in fact a decree for joint possession. The shares of the parties having been determined, they are entitled to remain in joint possession till such time their shares are separated by effecting partition.

For the reasons stated above, there is no merit in the appeal and the same is dismissed. No order as costs.