BANTA SINGH Vs. KARNAL SINGH

JUDGEMENT

(1.) This is plaintiff's appeal, filed under Section 100 of the Civil Procedure Code (for brevity 'the Code'), challenging the view taken by the learned Lower Appellate Court, Kurukshetra, holding that the judgment and decree dated 2.6.1990 passed in civil suit No.381 of 1990, in favour of defendant No.l Kartar Kaur (now represented by respondent Nos. 1 and 2) did not suffer from any legal infirmity and the same could not be set aside. It has further been held that the plaintiff-appellant was absolute owner of the suit land and in his hand, the suit land was not ancestral in character qua the other coparceners. The learned Lower Appellate Court has also held that the judgment and decree dated 2.6.1990 passed in Civil Suit No.381 of 1990 did not require registration, as the same was based on pre-existing rights of defendant No.l.

(2.) The dispute raised in the present proceedings is related to the property of one Ram Kishan @ Shiv Charan Singh.A small pedigree table would render assistance in understanding the controversy:- <IMG>JUDGEMENT_414_CCC2_2006Image1.jpg</IMG>

(3.) The plaintiff-appellant filed a suit for declaration with a consequential relief of permanent injunction against defendant No. 1 Kartar Kaur, to the effect that the judgment and decree obtained by defendant No. 1 from his brother Rattan Singh-defendant respondent No. 3 is null and void and was not binding on his rights. The plaintiff-appellant Banta Singh has two brothers namely Rattan Singh and Ujjagar Singh. All of them had inherited the property from their fore-father Bhagwan Singh. The property was claimed to be ancestral in the hands of plaintiff-appellant as well as his brothers. It was claimed that they were co-parceners to the extent of l/3rd share each. Ujjagar Singh, one of the brothers.had expired being unmarried and issueless and his share is alleged to have been transferred to the plaintiff-appellant. The other brother Rattan Singh defendant- respondent No. 3 was also unmarried and issueless. Alleging that defendant No. 1 Kartar Kaur played a fraud with Rattan Singh and obtained a judgment and a collusive decree dated 2.6.1990, passed in civil suit No.381 of 1990, it has been asserted that Rattan Singh-respondent-defendant No.3 had in fact never appeared before the Court and a fraud was played. The plaintiff-appellant also asserted that Rattan Singh-defendant-respondent No.3 had no right to alienate the property being unmarried and issueless, because after his death, the ancestral property is liable to fall to his share. The learned trial Court came to the conclusion that the property in question is ancestral property and thus the judgment and decree obtained by defendant No.l was null and void. It was further held that, in any case the aforementioned judgment and decree was required to be registered, in accordance with provisions of Section 17 of the Registration Act, 1980. Reliance in this regard was also placed on a judgment of Supreme Court in the case of Bhoop Singh v. Ram Singh Major.