Sham Lal and Others vs Hakam Singh and Others

S.K. Jain, J.—Civil Suit No. 167/86 instituted on 26.8.1986 by Hukam Singh, Prem Singh and Jagir Singh, respondents herein, against Sham Lal and five others, appellants herein, for a decree of declaration to the effect that the land described in para No. 5 of the plaint and shown red in the site plan attached with the plaint vested in the proprietory body of the village and that gift-deed dated 12.4.1982 was illegal and void and was not binding on their rights and further for a decree of permanent injunction thereby restraining the defendants from interfering in their possession over the suit land was decreed with regard to declaration but the relief of permanent injunction was declined.

Defendants preferred Civil Appeal No. 285 on 27.2.1989. The plaintiffs filed cross-objections. The appeal and the cross objections were dismissed by Additional District Judge, Chandigarh vide his judgment and decree dated 11.9.1991.

It is that judgment and decree of the first Appellate Court which has been appealed against by the defendants and which requires my examination of its sustainability.

It have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgment of both the Courts below.

Learned trial Court in its judgment has said that admittedly the suit land vested in the proprietory body of the village. The resolution Ex. D-2 was not passed and gift-deed Ex.D3 was not executed by all the proprietors of the village. Therefore, the same was not binding on the rights of the proprietors, who were not party to these documents. Moreover, even the proprietory body had no right to gift the suit land because he could not change the nature of the land without the permission of the competent authority. The gift-deed was illegal and void because it was an unregistered document and therefore, it could not be exhibited in evidence. It was further held that the present diety of the Shiv Mandir was in pos-session of the suit land, that the plaintiffs were not parties to the previous judgment and, therefore, it does not operate as res judicata against them. It was found by him that the suit was within limitation.

The learned First Appellate Court affirmed the findings of the learned trial Court. The gift-deed dated 12.4.1982 (Ex.D-3) was held to be illegal and inoperative against the rights of the plaintiffs and further that the plaintiffs being not in possession of the land in dispute were not entitled to the relief of injunction. He also recorded a finding that even though the gift deed was not binding on the plaintiffs yet their remedy to seek partition of their share in the land in dispute. The previous judgment did not operate as res judicata and that the suit was within limitation.

Learned counsel for the appellants has argued that in para No.4 of the plaint, it is pleaded that a Mandir was constructed by 6th defendant in the portion shown in blue colour with the implied consent of the villagers. This blue portion was gifted by the villagers vide gift-deed Ex-D-3. This gift-deed includes the red portion. After having admitted that the temple had been constructed by sixth defendant in blue portion with the consent of the proprietors of the village now they cannot bifurcate the gift so as to say that red portion had not been gifted.

This argument attractive at first sight is, in my opinion no tenable on the sound appreciation of the facts of the case, evidence on record and the law points involved herein. Firstly, it is the case on both ends that whole of the land in dispute was owned by the proprietory body of the village. It is also admitted that the gift-deed Ex. D-3 had not been executed by all the proprietors. Therefore, the proprietors who have executed the said gift deed could not possibly have gifted the share of those proprietors who are not party to the same.

Secondly, Section 123 of the Transfer of Property Act, 1882 provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. On account of its non-registration, the document of gift-deed is hit by the said provisions of the Transfer of Property Act.

It has been pleaded in para No. 4 of the plaint that defendant No. 6 had constructed a temple in blue portion in the year 1982 with the implied consent of the villagers. Relevant portion of first para of gift-deed when translated into English would read somewhat as under: -

"That on 15.2.1982 the members and proprietors of village Sarangpur U.T., Chandigarh have passed a resolution in writing according to which following land had been donated and a Shiv Mandir has already been constructed thereupon."

According to the resolution the gift-deed has to be executed. Photocopy of Resolution dated 15.2.1982 Ex, D-2 when translated into English would read somewhat as under: -

"That the proprietors of the village have unanimously resolved that the common land of the abadi which has not been partitioned should be donated to the temple Committee for construction of a Shiv Temple. This includes the land from Jaman tree towards the pucca four walk in the North."

Perusal of this resolution would show that no measurement of the land is mentioned. It is also not the case of the defendants that this resolution had been passed by all the proprietors of the village. Therefore, by no stretch of imagination it can be said that the land measuring 200'' in the East: 198'' in the West: 80'' in the North and 18'' in the South and bounded as Pucca road in the East, pond in the west, pucca four walls in the North and abadi deh in the South, as mentioned in the gift-deed, was donated vide Resolution Ex-D-2. Therefore, the above argument of the learned counsel falls to the ground.

Coming to the point of limitation, I find myself in agreement with the learned Courts below that the Gift-deed having been found invalid and inoperative as against the rights of the plaintiffs who were not a party to it, and cause of action having arose to them in July, .1986 when the defendants asserted their rights against them, the suit for declaration and injunction was well within limitation.

Now on to the point of the effect of the previous judgment with regard to the property in dispute. Perusal of the copy of the judgment Ex.D-22 shows that Civil Suit No. 183 was filed on 21.4.1982 by Shiv Idol, Shiv Mandir, Village Sarangpur, U.T Chandigarh through Shri Mehar Singh (devotee) President; Shiv Mandir, Committee, Sarangpur, through its President and Sham Lal Vice-President, Shiv Mandir Committee, Shiv Mandir, at Village Sarangpur against (i) Sadda Singh (ii) Garib Singh and (iii) Kaka Singh for a decree of permanent injunction restraining the defendants from tethering their cattle; dumping heaps of cow dung, and cow dung cakes, and selling the trees at Nos. 1,2,3 and 4 in the vacant portion of the land of the plaintiffs marked as A.D.E.F. in the site plan attached with the said plaint and further restraining them from interfering with the peaceful possession by the plaintiffs of the said vacant portion of the land situated in abadi-deh of village Sarangpur. It is clear that plaintiffs Hakam Singh, Prem Singh and Jagir Singh were not parties to that suit. Therefore, if the claim of ownership and possession put forward by Sadda Singh, Garib Singh and Kaka Singh defendants in that suit, was dismissed even then that will not in any manner effect the rights of the plaintiffs.

It is evident from para No. 2 of the order Ex-D.26 that during the pendency of the execution of the above said previous decree Sadda Singh and others had filed an objection petition wherein they had taken the stand that they were not dumping heaps of cow-dung and cow-dung-cakes and were not tethering their cattle on the suit property and that other villagers were doing so. The Executing Court had rejected the said plea and had held that it appeared that the objector/judgment-debtors Were not allowing the decree-holder to use the suit land.

In view of the above facts, the previous judgment and decree dated 30.7.1984 (Ex.D.22) to which the plaintiffs were not party is not operative against them.

As far as the question of limitation is concerned as mentioned hereinbefore, the gift-deed being-illegal, invalid and in-operative as against the rights of the plaintiffs and the cause of action having arisen to them in July 1986 when defendants had asserted their rights against them, the suit was well within limitation.

In view of the above discussion, I affirm the findings of the learned Courts below. Resultantly this appeal fails and is hereby dismissed. However, the parties are left to bear their own costs.