In the High Court of Punjab and Haryana at Chandigarh
R.S.A. No. 473 of 1985
Date of decision: July 02, 2009
Arjan Singh through L.Rs Jaspal Singh and others
.. Appellants
Vs.
Ram Partap and another
.. Respondents
C.O.C.P. No. 634 of 2001
Avtar Singh and another
.. Petitioners
Vs.
Jaspal Singh and others
.. Respondents.
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. S.D. Bansal, Advocate for the appellant.
Mr. Alok Jain, Advocate with
Mr. R.K. Aggarwal, Advocate for the respondents.
A.N. Jindal, J
This judgment of mine shall dispose of Regular Second Appeal
No. 473 of 1985 and the C.O.C.P. No. 634 of 2001, together being
interconnected.
This is defendant’s second appeal against the judgment and
decree dated 10.12.1984 passed by the learned Additional District Judge,
Patiala, dismissing the appeal of the appellant-defendant against the
judgment dated 30.9.1982 passed by the Sub Judge Ist Class, Rajpura,
whereby, the suit of the plaintiff-respondent (herein referred as ‘the
plaintiff’) was decreed for possession of the agricultural land measuring 55
bighas 12 biswas, as detailed in the head note of the plaint, was decreed.
The case has chequered history. Earlier Norata Ram was the
owner of the aforesaid land. On 29.4.2004 (B.K.) vide an adoption deed he
had adopted the defendant-appellant (herein referred as ‘the defendant’)
Arjan Singh, later on, on 10.3.2005 (B.K.) he revoked the said deed of
R.S.A. No. 473 of 1985 &
C.O.C.P. No. 634 of 2001 -2-
adoption. The said revocation deed was challenged by the defendant
through a regular suit. However, his suit failed, in the lower court but the
appeal against the said judgment was accepted. Consequently, the
revocation deed was set aside by this Court. However, Norata Ram
bestowed the suit land in favour of the plaintiff No.1 and 2 by way of
registered Will dated 3.7.1963. On the death of Norata Ram on 25.11.1975,
the defendant filed the suit for declaration claiming his ownership and
possession and sought injunction restraining the plaintiffs from interfering
in his peaceful possession. The said suit was decreed by the Sub Judge II
Class, Rajpura on 30.9.1982. However, the appeal filed by the present
plaintiffs was dismissed by the learned Additional District Judge, Patiala on
10.12.1984, whereby the court accepted the Will dated 3.7.1967 executed
by Norata Ram in favour of the plaintiff. The defendant remained in
unlawful possession in the suit land even after the aforesaid judgment of the
learned Additional District Judge, Patiala. As such, the plaintiff preferred
the present suit for possession.
Arjan Singh defendant contested the suit by filing written
statement whereby he while admitting the previous litigation, submitted that
the suit land is an ancestral and joint Hindu coparcenary property which
came into his hands from his father by way of succession. He had birth
right in the said property along with Norata Ram. On the death of Norata
Ram, the property being coparcenary devolved upon him by way of
survivorship. While admitting the Will dated 3.7.1967, he pleaded that the
defendant had earlier challenged the Will executed by Norata Ram under
custom as both of them were governed by the Punjab Customary Law in the
matter of alienation and succession being Jat agriculturists as Will of whole
of the property of the deceased amounted to cancellation of the adoption
deed of the defendant. During the pendency of the suit, Hindu Succession
Act, 1956 came into force. As such, High Court observed in 1977, that Will
or alienation could be challenged by the adopted son under custom.
However, the same stood repealed, so the suit filed by the defendant failed
before the District Judge so also before the High Court. While pleading that
Norata Singh was coparcener, further stated that they are governed by the
Hindu Succession Act, 1956 in the matter of succession, the defendant has
R.S.A. No. 473 of 1985 &
C.O.C.P. No. 634 of 2001 -3-
become owner of the suit by way of survivorship, on the death of Norata
Singh deceased being his son and sole surviving coparcener. Even if it is
held that Norata Singh was competent to execute the Will under the Hindu
Succession Act then he could execute only to the extent of his ½ share in
the property viz-a-viz the defendant has become owner of the remaining ½
share on account of notional partition having taken place between him and
Norata Singh deceased. Since the defendant did not know about his rights
under the Hindu Succession Act, applicable to his case at the time of earlier
litigation, therefore, this plea could not be set up by him.
Replication was also filed. From the pleadings of the parties,
the trial court framed the following issues:-
1. Whether the plaintiffs are entitled for possession of the
suit land?OPP
2. Whether the suit property was ancestral property of
Norata deceased qua the defendant? If so, its effect?OPD
2A. Whether the judgment and decree dated 20.9.1980 of
District Judge, Patiala operates as resjudicata between
the parties? If so its effect?OPP.
3. Relief.
The trial court and the lower appellate court while relying upon
the judgment Ex.P1 and also keeping in view the second appeal having been
dismissed against the defendant, decided issue No.1 in favour of the
plaintiff. It was also held under issue No.2A that the judgment dated
20.9.1980 operates as resjudicata between the parties, resultantly, both the
courts decided in favour of the plaintiff.
The parties are not at much variance about the facts prevailing
over the case. There is no denying a fact that Norata Singh died issueless
and once upon a time he had adopted Arjan Singh defendant. Ram Partap
and Amar Singh are sons of Assa Ram brother of Norata Singh. The suit
land has also not been denied being ancestral coparcenary and joint Hindu
property. The controversy which earlier resulted between Norata Singh and
Arjan Singh has also not been disputed and it is also not disputed that he
R.S.A. No. 473 of 1985 &
C.O.C.P. No. 634 of 2001 -4-
was adopted on 29.4.2004 (BK). However, a dispute arose between them
on 10.3.2005 (BK) Arjan Singh defendant had challenged the revocation of
adoption deed by Norata Singh. It is also not in dispute that ultimately the
High Court set aside the revocation deed. Any way, Arjan Singh defendant
admits the Will dated 3.6.1967 having been executed by Norata Singh in
favour of Ram Partap and Amar Singh. The Will was registered one and
Norata Singh died eight years after the Will. It is also not denied that the
defendant had challenged the Will executed by Norata Singh under custom
and that litigation has resulted against him. On the basis of the said
judgment Ex.P1, the present plaintiffs have filed the suit for possession.
The substantial question of law which arises out of the present
suit is “whether Norata Singh once failed to prove his ownership on the
basis of natural succession, could claim the rights in the property while
taking plea of coparcenary which he could and ought to have taken at the
time of filing of the earlier suit?”
It has been urged by the learned counsel for the appellant that
earlier suit was filed by the defendant in order to assail the Will executed by
Norata Singh under Section 81 of the Customary Law as the same amounted
to dis-inheritance of the defendant-adopted son which again is prohibited
under the custom. As the custom was repealed, therefore, while
pronouncing the judgment Ex.P-1, so it was held by the learned District
Judge that the defendant was not competent to challenge the Will executed
by Norata Singh deceased and Norata Singh deceased was competent to
bequeath the entire property by way of registered Will under Section 13 of
the Hindu Adoption and Maintenance Act. It was next contended that the
defendant being the adopted son inherited the property when he entered the
adoptive family and whatever rights he had adopted in the adoptive family
could not be snatched from him and he being natural heir of Norata Singh
in the coparcenary property was entitled to succeed ½ share in the property.
Having examined the facts and circumstances of the case, no
force could be found in the aforesaid contention. The appellant has
admitted the Will having been executed in favour of the plaintiffs. He had
also claimed succession after the enactment of the Hindu Succession Act
and did not set up the plea with regard to his right by way of survivorship.
R.S.A. No. 473 of 1985 &
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He never claimed at that time that the property was joint Hindu coparcenary
property and he was the coparcener in the family, as such, judgment Ex.P1
dated 20.9.1980 passed by the learned District Judge, Patiala amounts to
constructive resjudicata. The plea which he ought to have taken at the time
when he had filed the suit No.715 dated 13.8.1976, could now not be raised
by him in the present subsequent suit. Now after 32 years of the litigation,
he having woke up to claim ownership on the basis of survivorship is
estopped to raise such plea. As such, the substantial question of law as
formulated above is bound to be answered against the appellant.
Resultantly, while finding no merit in the appeal, the same is
dismissed with no order as to costs.
Consequently, C.O.C.P. No.634 of 2001 also stands dismissed.
July 02, 2009 (A.N. Jindal) deepak Judge