C.R. No. 2682 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 2682 of 2008 (O&M)
Date of decision: January 15, 2009
Raminder Kaur
.. Petitioner
v.
Atamjit Singh and others ..
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Kamal Sehgal, Advocate for the petitioner.
Ms. K.S. Grewal, Advocate for respondent No. 1.
..
Rajesh Bindal J.
Challenge in the present petition is to the order dated 15.3.2008,
passed by the learned court below in an application filed under Order 39 Rules 1
and 2 of the Code of Civil Procedure, whereby in a suit filed by respondent No.1-
plaintiff, the learned court below had stayed implementation of the judgment and
decree passed by Shri Ravinder Singh, Civil Judge (Senior Division), Jalandhar,
whereas the relief prayed for by respondent No.1 -plaintiff for interim injunction
against the petitioner from interference in the possession, was dismissed. The
learned Civil Judge (Senior Division) had dismissed the injunction application in
totality. However, the aforesaid order was passed by the learned Additional
District Judge in an appeal filed by respondent No.1-plaintiff.
The case has a chequered history. Though, it would not be
appropriate for this Court to record any finding on any of the contentions raised by
the respective parties, however, the facts are noticed. In the year 1958, one Gurbax
Singh sold two chunks of land located in Villages Dhakoa (Jalandhar) and Aur
(Nawanshahr) to Lt. Col. Gurbachan Singh and Dalip Singh. On 10.4.1969,
Gurbax Singh died. He being unmarried bequeathed his property in favour of his
sister-Harbans Kaur and her son Atamjit Singh (respondent No.1). In the year
1978, Harbans Kaur filed a suit challenging the sale deed executed by Gurbax
singh in the year 1958 in favour of Lt. Col. Gurbachan Singh and Dalip Singh with
the plea that the sale transaction was sham. Though the learned court below opined
C.R. No. 2682 of 2008 [2]
the sale deed to be a sham transaction, but dismissed the suit on locus standi. The
judgment was upheld upto this Court. Atamjit Singh son of Harbans Kaur filed a
suit on 9.4.1979 pertaining to the land measuring 98 kanals 12 marlas situated at
Village Dhakoa, Tehsil and District Jalandhar, which was sold vide sale deed
dated 19.6.1958 taking the plea of the sale deed being a sham transaction. The suit
was dismissed on 10.9.1981. Even the appeal by the first appellate court was also
dismissed. However, R.S.A. No. 1179 of 1984 filed by Atamjit Singh is pending in
this Court. After the death of Gurbachan Singh, the property was transferred in the
name of his wife-Surjit Kaur. As she was not having any issue, she started living
with her sister-Raminder Kaur’s family. Surjit Kaur executed a registered will
dated 3.3.1996 in favour of Raminder Kaur regarding the property which was
inherited by her. After the death of Surjit Kaur, Raminder Kaur filed a suit for
declaration with regard to the property on the basis of the will, which was decreed
in her favour on 12.6.2006. (It is this judgment and decree, the implementation of
which has been stayed vide the impugned order passed by the learned lower
appellate court in the present case in a suit filed by respondent No.1-plaintiff on
1.8.2007).
Learned counsel for the petitioner submitted that once the suit filed
by Harbans Kaur challenging the sale of land by Gurbax Singh in favour of Lt.
Col. Gurbachan Singh and Dalip Singh was dismissed, no finding recorded on any
of the issue even against the petitioner or her predecessors-in -interest could be
enforced, as it is the final judgment which is to be considered. He further
submitted that even the earlier suit filed by respondent No.1-plaintiff pertaining to
part of the property, subject-matter of the present suit, was dismissed on
10.9.1981, which judgment and decree of the trial court was upheld by the first
appellate court, though Regular Second Appeal is pending before this Court.
However, the same issue was sought to be raised by him in the second suit which
was not maintainable. He further submitted that the learned court below has totally
exceeded its jurisdiction in staying the implementation of the judgment and decree
in a separate suit filed by respondent No.1-plaintiff. In fact, the petitioner is in
possession of the property ever since the same was inherited by her and the effort
of respondent No.1 is just to grab the property. Reliance was placed upon M/s Ram
Mohan and Co. and another v. M/s Ganesar Ginning Co. P. Ltd., Coimbatore and
others, AIR 2000 Madras 1, in support of the plea that finding recorded on any of
the issue would not be relevant in case the suit is finally dismissed.
On the other hand, learned counsel for respondent No.1 submitted
that the finding in the earlier suit can very well be relied upon in the subsequent
C.R. No. 2682 of 2008 [3]
litigation on the plea of res judicata. In fact, against the judgment and decree of the
trial court, both the parties filed appeal/cross-objections which were dismissed,
meaning thereby that the petitioner or her predecessors-in-interest had taken
remedy against the findings recorded against her. He further submitted that
respondent No.1 has been granted letter of administration on the basis of the will
executed by Gurbax Singh in his favour, which is a judgment in rem against
general public and binding on every one. In terms thereof, he had become the
owner of that property. After the sale deed having been declared as sham
transaction in the suit filed by Harbans Kaur, the propety had been reverted back to
Gurbax Singh and the petitioner, who is successor-in-interest from Lt. Col.
Gurbachan Singh, cannot claim right, title or interest therein.
In response to the contentions raised by learned counsel for
respondent No.1, learned counsel for the petitioner submitted that a fact was
noticed by the learned Civil Court while dismissing the suit filed by respondent
No.1-plaintiff earlier that while applying for grant of letter of administration, he
did not include the suit property situated in Village Dekhoa therein. Accordingly,
the plea to that effect is totally misconceived.
Heard learned counsel for the parties and perused the record.
It is a case where both the parties are claiming their respective claims
to the ownership of the property. Both are not direct descendants of the owners of
the property. There had been earlier litigation by the parties, as has been mentioned
above. Out of one litigation, even second appeal is pending before this court.
There is a decree passed in favour of respondent No.1 by the Civil Court declaring
the petitioner-defendant as owner thereof on the basis of the will executed in her
favour by Surjit Kaur wife of Gurbachan Singh. All what has to be done on the
basis of the will is that the entries are to be corrected in the revenue records. Both
the courts below have found that respondent No.1-plaintiff is not in possession of
the property and his prayer for injunction on that account has been dismissed.
Considering the fact that the suit in which the interim order has been passed
pertains to two chunks of land, regarding one the suit filed by respondent No.1-
plaintiff was already dismissed against which Regular Second Appeal is pending
before this Court and regarding second, the suit filed by mother of respondent
No.1-plaintiff was dismissed on locus standi, though finding on one of the issue
was recorded in her favour.
Though much arguments have been addressed on legal issues
involved in the suit, however, the court is refraining from recording any finding
thereon as the same may prejudice the case of either of the parties.
C.R. No. 2682 of 2008 [4]
Keeping all the facts in view, I do not find that prima facie case has
been made out by respondent No.1-plaintiff to stay the implementation of the
judgment and decree passed in favour of the petitioner. Accordingly, the interim
stay granted by the learned lower appellate court to that effect is vacated.
However, the petitioner is restrained from alienating the suit property except with
the prior permission of the trial court.
The revision petition is disposed of in the manner indicated above.
(Rajesh Bindal)
Judge
15.1.2009
mk