AVTAR SINGH Vs. TH. ATMA SINGH

JUDGEMENT

(1.) THIS appeal has a chequered history. Hukma Singh, the father of respondents Atma Singh, Kalyan Singh, Khem Singh, Hardev Singh and Rughbir Singh, executed a gift deed in respect of the suit house in favour of one Dhayan Singh, the predecessor-in-interest of the appellants, On 16th Kartik, 2002, Samvat. The respondents, out of whom Kalyan Singh died during the pendency of this appeal, and whose legal representatives have already been brought on the record, brought a suit on 3rd Magh. 2009 Samvat, in the Court of Munsiff, Sub Registrar Jammu, against Dhayan Singh seeking a declaration that the suit house being their joint and ancestral property, their father Hukma Singh had no right to alienate it in favour of the donee, Dhayan Singh, In this suit they also impleaded their lather Hukma Singh as the second defendant. Summons were issued to Dhayan Singh but the same could not b; served on him and the trial Court proceeded ex parts against him. Hukma Singh however, did not choose to contest the suit and he also remained ex parte. On taking ex parte evidence, the Court ultimately decreed the respondents' suit declaring the aforesaid gift deed to be null and void as against the rights of the respondents, by virtue of its judgment dated 31st Assuj, 2010 Samvat. The suit was brought for mere declaration on the allegation that the respondents were in possession of the suit house.

(2.) ON 1st May, 1068, Dhayan Singh having disappeared in the meantime, and his whereabouts not being known for a period of more than seven years, the appellants brought a suit for declaration that they were the owners of the suit house by virtue of the gift deed executed by its owner Hukma 5ingh in favour of their predecessor-in-interest Dhayan Singh, and for consequential relief of possession of the suit house, alleging that pursuant to the gift- deed, Dhayan Singh was put in possession of the suit house on the very day it came to be executed in the favour and he along with the appellants had remained in its possession till his disappearance;' the appellants continuing in its possession till December, 1857, when the respondents forcibly ejected them from it. This suit was resisted by the respondents both on the grounds of title as well as possession. Their, contention was that the appellant had no title to the suit house as the decree, even though ex parte, passed by Munsiff, Sub-Registrar, Jammu, on 31st Assuj, 2010 Samvat, declaring the gift deed void and inoperative in so far their rights in the house were concerned, operated as res-judicata between the parties. They also contended that neither Dhayan Singh, nor the appellants, ever came into possession of the suit house, which all along remained in their possession, adding, that it was joint and ancestral qua the respondents and the suit was not properly valued for the purposes of Court-fee and jurisdiction. A preliminary issue in regard to the valuation of the suit was framed by the trial court, which was eventually decided in favour of the respondents, and the appellants were directed to bring a suit for possession simpliciter. The appellants, consequently, amended the plaint and converted their suit into one for possession, valuing the same for the purposes of Court-fee and jurisdiction at Rs. 5,500/-. The suit was, as a result, tried by District Judge, Jammu, who without going into other points involved therein, framed a preliminary issue as to whether or not the suit was maintainable. when admittedly the gift deed upon which the appellants had based their title, was declared null and void by the Court of Munsiff, Sub-Registrar, Jammu, by its judgment dated 31st Assuj, 2010 Samvat. This issue was decided by the learned District Judge in favour of the respondents, holding that even though the suit was not barred under the provisions of Section 11 C.P.C., yet Section 43 of the Specific Relief Act applied to it and the judgment of Munsiff Sub-Registrar. Jammu, dated 31st Assuj, 2010 Samvat, declaring the gift deed as null and void, was binding on the appellants, who admittedly claimed the suit house through Dhayan Singh. As a consequence, the learned District Judge dismissed the suit on 31st January, 1969.

(3.) THE District Judge accordingly, framed an additional issue in the following terms :