SHANTI DEVI Vs. IQBAL SINGH

JUDGEMENT

(1.) Defendant No. 2 Shanti Devi (presently LRs of defendant No. 2) and Balwant Singh (presently LRs of Balwant Singh), (the lis pendens purchaser), have filed the present appeal against the judgment and decree dtd. 21/9/1987 passed by the trial Court vide which the suit filed by the plaintiff (respondent No. 1/presently LRs of respondent No. 1) Iqbal Singh for declaration with consequential relief of permanent injunction or in the alternate for possession has been partly decreed and it has been held that the judgment and decree passed in Civil Suit No. 538 of 1981 in favour of Shanti Devi (defendant No. 2) was illegal, null and void and was not binding on the rights of the plaintiff and the plaintiff (respondent No. 1) was granted the relief of possession to the extent of 1/5th share of the suit land. Challenge is also to the judgment and decree dtd. 8/3/1989 vide which the appeal filed by the present appellants has been dismissed by the Ist Appellate Court. The present regular second appeal has been filed under Sec. 41 of the Punjab Courts Act 1918 and not under Sec. 100 of CPC and in paragraph 27 of the judgment of the Constitutional Bench (Five Judges Bench) of the Hon'ble Supreme Court in the case of Pankajakshi (dead) through legal representatives and others v. Chandrika and others and other connected matters reported as (2016) 6 SCC 157, it was observed that Sec. 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, has no application to Sec. 41 of the Punjab Courts Act, which provision would necessarily continue as a law in force.

(2.) Brief facts of the present case are that respondent No. 1-Iqbal Singh/plaintiff (hereinafter referred to as "the plaintiff") had filed suit for declaration to the effect that he was exclusive owner in possession of the suit land measuring 133 kanals 2 marlas comprised in Khewat No. no157, khasra No. 1352(7-11), 1385(7-12), 2015(1-7), 2016(10-2), 2018(7-3), 2019/2(7-4), 2026/2(7-11), 2027 (8-0), 2028(5-3), 2029(9-16), 2030(8-0) khasra No. 2031/2(7-11), 2041(8-0), 2042/2(4-16), Kittas 14, total 99 kanals 16 marlas vide mutation No. 1326 and Khewat No. 157 min, Khasra Nos. 2038 (8-0), 2039(4-0), 2040 (4-0), 2046(8-0), 2047(8-0), 2019/1(0-8), 2026/1(0- 9) 2031/1(0-9), kittas 8, measuring 33 kanals 6 marlas vide mutation No. 1325, total land 133 K- 2 M situated in village Bakana Nos. 93, Tehsil Thanesar vide jamabandi 1978-79. A further declaration was sought that the decree dtd. 13/11/1981 passed in Civil Suit No. 538 of 1981 by the Court of Sub Judge IIIrd Class, Kurukshetra in favour of defendant No. 2 (present appellant No. 1) (hereinafter referred to as defendant No. 2) with respect to a part of the suit land measuring 33 kanals 6 marlas was illegal, null and void. Consequential relief for permanent injunction restraining the defendants from alienating or creating any encumbrance over the suit land etc. was also prayed and in the alternative it was prayed that in case the Court comes to the conclusion that the plaintiff is not in possession of the suit land, then the plaintiff be put in possession of the suit land. The case of the plaintiff in the plaint was that the entire suit land was owned and possessed by Sher Singh, (father of the plaintiff as well as father of defendants No. 2 to 5 and husband of defendant No. 1) and the said land was ancestral and Jaagir property in the hands of Sher Singh who had died in the year 1982. It was further pleaded that since it was Jaagir property and ancestral one, thus, the same could not be alienated but Sher Singh in contravention of law transferred 33 kanals 6 marlas of the suit land vide a collusive decree dtd. 13/11/1981 in favour of defendant No. 2. It was further averred that apart from the fact that the said decree was obtained by fraud and misrepresentation, the same was against the provisions of law and was null and void, inoperative, ineffective and not binding on the rights of the plaintiff.

(3.) A joint written statement was filed by defendants No. 2 to 5 and in the said written statement, it was pleaded that the property in dispute was self acquired property of Sher Singh and that the same was not ancestral property. It was further averred that with respect to land measuring 33 kanals 6 marlas, the said Sher Singh had transferred the same to defendant No. 2 in a family settlement which was recognised in the decree dtd. 13/11/1981. It was thus the case in the said written statement that by virtue of the said decree the defendant No. 2 was owner in possession of the land measuring 33 kanals 6 marlas and with respect to the remaining land, all the legal heirs of Sher Singh which were the plaintiff, four daughters and the mother were entitled to inherit the estate. It would be relevant to note that in the written statement filed by defendants No. 2 to 5, no date much less year in which the said family settlement had taken place, has been mentioned. It has not been stated that as to whether the said family settlement was oral or in writing.