GURBINDER SINGH Vs. LAL SINGH

JUDGEMENT

(1.) THE following pedigree table will help in understanding the facts of this case : RAJ KAUR (Widow of Bir Singh) ________________|___________________ | | Prem Kaur (Plaintiff) Mahan Kaur | ____________|_____________ Bakhshi Singh | | Lal Singh Pratap Singh (plaintiff) (plaintiff) Raj Kaur was in possession of 851 kanals 18 mar -las of land in village Dhaipai which was then in the Faridkot State. Of this area, 481 kanals 7 marlas was occupancy tenancy, the landlord being the Raja Sahib of Faridkot, while the remaining land was held by Raj Kaur as adna malik, again the ala malik being the Raja. Sometime about the year 1953 Bk. (corresponding to 1893) Raj Kaur adopted her daughter's son Bakhshi Singh, and he took possession of the land. Later he transferred some of the land to his cousin Partap Singh son of the second daughter of Raj Kaur. In the meantime, however, and during the lifetime of Raj Kaur, the Raja of Faridkot brought a suit to avoid the adoption and in that suit Raj Kaur and Bakhshi Singh were impleaded as defendants. This suit succeeded and the adoption was declared invalid. Raj Kaur died in Bhadon, 1987 Bk. (corresponding to August, 1930) and about three years after that the Raja of Faridkot brought two suits for possessionone regarding the occupancy tenancy and the other concerning the adna malkiat and in those suits Bakshi Singh and Partap Singh were made defendants. Both the suits were decreed and, in execution, the Raja took possession of the entire land in Assauj, 1995 Bk. (corresponding to October, 1938), and some years later the Raja sold the entire land to one Kehar Singh for Rs. 84,357/8/ -. Gurbindar Singh and others brought a suit to pre -empt this sale in favour of Kehar Singh and succeeded in getting a decree. Before that, however, Mst. Prem Kaur, daughter of Raj Kaur, brought a suit on the 5th Kartik, 2005 Bk. (corresponding to the 23rd October, 1948) for possession of the entire land against Kehar Singh as well as the Raja of Faridkot, claiming that she was the legal heir of Raj Kaur and entitled to the possession of the land and that the defendants were mere trespassers - About a year later, i.e. on the 6th Phagan, 2006 Bk. (corresponding to the 17th February, 1950) Lal Singh brought a similar suit against Kehar Singh ami the Raja of Faridkot, again claiming possession on the ground of title as an heir to his mother Mahan Kaur, who had in the meantime died in Har, 1995 Bk. (corresponding to July, 1938). In this suit Partap Singh was first made a defendant but later joined as a plaintiff. These two suits were consolidated and tried together. The Raja of Faridkot was struck off as a defendant as he had no longer any interest in the property while Gurbinder Singh and others, who had succeeded in the pre -emption suit, were joined as contesting defendants, Kehar Singh had 'filed a written statement and that was adopted by Gurbinder Singh and others.

(2.) THESE two suits one by Prem Kaur and the other by Lal Singh and Partap Singhwere resisted on a number of grounds. It was denied that Lal Singh and Partap Singh were the sons of Raj Kaur's daughter and also denied that Prem Kaur was Raj Kaur's daughter. It was pleaded that, in any case, neither Prem Kaur nor the sons of Mahan Kaur were legal heirs to the properly. It was further pleaded that both the suits were barred by time, having been brought more than twelve years after Raj Kaur's death. It was said that the plaintiffs in both the suits were estopped from suing and that the decision in the previous litigation started by the Raja of Faridkot operated as res judicata, and finally that Kehar Singh was a bona fide purchaser for valuable consideration and was protected as such. On these pleadings the trial Court framed the following six issues: (1) Whether Smt. Prem Kaur plaintiff is the daughter of Smt. Raj Kaur deceased and entitled to succeed to the property left by the latter? (2) Whether Lal Singh and Partap Singh plaintiffs are the sons of the daughter of Smt, Raj Kaur deceased, and are entitled to succeed to the property left by the latter? (3) Whether the suits of Smt. Prem Kaur, and Lal Singh and Partap Sing plaintiffs are within time? (4) Whether the plaintiffs Smt. Prem Kaur, Lal Singh and Partap Singh or either of them are estopped from suing? (5) Whether Kehar Singh is a bona fide purchaser, and if so, what is its effect? (6) Whether the decision in the suit filed by His Highness of Faidikot against Bakhshi Singh and others for possession of the land in dispute operates as res judicata against Partap Singh defendant? On the evidence the Court found that -Prem Kaur was the daughter of Raj Kaur, and Lal Singh and Partap Singh were the sons of Raj Kaur's second daughter, Mahan Kaur that Prem Kaur as well as Lal Singh and Partap Singh were entitled to succeed to Raj Knur's property in preference to the Raja of Faridkot that the plaintiffs were not estopped from and that the decisions in the previous suits brought by the Raja did not operate as res judicata. On the fifth issue the Court held that Kehar Singh was not protected by the rule contained in Section 41 of the Transfer of Property Act. On the third issue regarding limitation, the Court found that the suit of Prem Kaur was barred by limitation, while the suit of Lal Singh and Partap Singh was not so barred, and in the result the trial Court dimissed the suit of Prem Kaur but decreed the suit by Lal Singh and Partap Singh and granted them a decree for possession of one -half of the suit land. The parties were left to their own costs. Against this decree, Gurbinder Singh and others appealed and so did Prem Kaur and cross -objections were filed by Lal Singh ana Partap Singh. The learned District Judge considered the matter and affirmed the conclusions of the trial Court on all the issues and thus dismissed both the appeals as well as the cross -objections, but left the parties to their own costs throughout A second appeal to this Court has been fifed by Gurbinder Singh and others, the defendants in the suits, while another appeal has been filed by Prem Kaur against the dismissal of her suit, and there are cross -objections by Lal Singh and Partap Singh. All these can be conveniently decided together.

(3.) MR . Nehra had to travel beyond this proposition, because in his cases we gather, the suits were filed after the 1st April, 1951. He contended, therefore, that the repeal mentioned in Section 20 of Act II of 1951 does not at all refer to the provisions contained in Section 49 of the PEPSU Ordinance, because the repeal was only of laws 'corresponding' to the Code of Civil Procedure, while Section 49 of the Ordinance did not correspond to the Code at all. This argument involves the substitution of the words 'identical with' for the expression 'corresponding to' for which there is of course no warrant at all. The argument is otherwise futile, for there is no doubt that when the Code of Civil Procedure was extended to Part 'B' States the intention was that the provisions of the Code alone would govern those matters which were expressly provided for in the Code. Mr. Nehra pointed out in this connection that Section 49 provided for several matters, apart from the ground? on which a second appeal could be lodged and that it could not have been intended to repeal the entire provisions merely because of the extension of the Code of Civil Procedure to PEPSU. Learned counsel is, in my opinion, right that Act II of 1951 did not repeal every provision contained in the PEPSU Ordinance but only repealed such iaws as corresponded to the provisions of the Civil Procedure Code and in respect of Section 49 of the PEPSU Ordinance everything was not repealed. Sub -section (1) of that section, for instance, provided for matters which had nothing to do with the Code of Civil Procedure. The only provision in Section 40 which corresponds to Sections 100 and 101 of the Code of Civil Procedure was contained in Sub -section (2) and it is that Subsection which, in my opinion, stood repealed by Act II of 1951.