ORDER
R.S. Madan, J.
1. Mangal Singh and others plaintiff/appellants having lost the legal battle before the two Courts below, filed the present Regular Second Appeal No. 300 of 1982 before this Court.
2. In brief, facts of the case are that the plaintiff/appellants have filed a suit for the recovery of possession of land measuring 107 kanals and 13 marlas situated in village Tut Sher Singh, Tehsil Nakodar, on the basis of registered Will dated 12-5-1969 executed by Bhana Singh deceased in their favour, as detailed in the heading of the plaint. The land in dispute was owned by Bhana Singh s/o Bakshish Singh of village Tut Sher Singh, Tehsil Nakodar, District Jalandhar, who died issueless and left behind him his widow Mohinder Kaur, to whom he had married through Chadarandaji. The following pedigree table shows the inter se relation of the plaintiffs being the legal heirs of the deceased:
Bakshish Singh
_____________________________________________________________
| | |
|1 2| 3
Misri (brother) Bhana (Deceased) Santi (sister)
| |
Wife |————-|———–|
______________________ (Mohinder Kaur) Mangal Punni Puran
| | (Creva Marriage) Singh (dead) Singh
Daughter Daughter (Plff. No. 1 | (Plff. No.
| | died on | 2 Vill.
Charan Kaur Pritam Kaur 1-3-89 | Naurang-
| | | Pur
Son Son |
Gurdev Singh Swaran Singh |
(Plff. No. 4 s/o (plff. No. 3 s/o |
Kartar Singh of Bur Singh of Wife of Hari Singh
vill. Jallalpur vill. Raival |
Kalan) |
________________________
| |
Sube Singh Balwinder Singh
3. It is further the case of the plaintiff/ appellants that Bhana was issueless and died at the end of 1969 or in the beginning of 1970. Prior to his death, he had executed a registered Will dated 12-5-1969 Ex. P.W. I/A, whereby he gave his aforesaid property to Gurdev Singh and Swaran Singh L.Rs. of his brother Misri and Mangal Singh (plaintiff No. 1) and Puran Singh (plaintiff No. 2) both sons of his sister Santi.
4. After the death of Bhana, Sh. Anokh Singh, PCS, Asstt. Collector, 1st Grade, Nakodar sanctioned Mutation of inheritance in the name of Mohinder Kaur alleged widow of Bhana on 10-7-1970 and ignored the registered Will of Bhana dated 12-5-69. Aggrieved by this, Mangal Singh and others filed an appeal against the order of Asstt. Collector, 1st Grade, Nakodar before the Collector, Jalandhar who vide his order dated 30-11-1970 accepted the appeal and sanctioned the mutation in favour of the appellants Mangal Singh etc. subject to rights of maintenance to Mohinder Kaur to retain two acres of land of Bhana (deceased) till her life.
5. Mohinder Kaur alleged widow filed revision petition against the order of the Collector dated 30-11-1970 in the Court of Commissioner, Jalandhar who vide order dated 24-4-1973 sanctioned mutation in favour of Mohinder Kaur alleged widow of Bhana and set aside the order of the Collector dated 30-11-1970 and restored the order of Assistant Collector, 1st Grade.
6. Thereafter, Mangal Singh and others the present appellants filed a Suit No. 100 of 1973 in the Court of Sub-Judge, Nakodar against Mohinder Kaur alleged widow of Bhana and prayed that they be declared owners of the property in dispute on the basis of registered Will dated 12-5-1969 and the Sub-Judge, Nakodar vide order Annexure P/2 dated 13-3-1974 decreed the suit in favour of the appellants. The suit was decree on the basis of compromise wherein. Mohinder Kaur was given two acres of land for her maintenance till her life. However, Mohinder Kaur on learning about the alleged compromise decree, filed a Civil Suit No. 155 of 1974 in the Court of Shri Jagroop Singh, PCS, Sub-Judge, IInd Class, Nakodar alleging therein that decree dated 13-3-1974 is outcome of practising fraud and misrepresentation. She had not authorised any person to act as her attorney and to compromise the suit. Mohinder Kaur in her suit had prayed that the appellants may not sell the property on the basis of judgment and decree dated 13-3-1974 Ex. P/2 passed by Sub-Judge, Nakodar till the decision of her suit. After filing of the suit Mohinder Kaur sold the suit land to respondents Hardial Singh and his brother Gurpal Singh through two registered sale deeds on 11-6-1974 for Rs. 48,000/- each. The sale deeds were registered by her on 11-6-1974 i.e. within two months of the filing of her aforesaid suit. However, when her Suit No. 155 of 1974 came for final decision she made a statement in the Court on 12-1-1976 that she is bound by the decree Ex. P/2 dated 13-3-1974 and withdrew her suit which was dismissed as withdrawn on 13-1-1976 vide judgment and decree Ex. P/3.
Thereafter, the appellants came to know about the transfer of the land through two sale deeds Ex. D/4 and D/5 in favour of Hardial Singh and Gurpal Singh during the pendency of the suit filed by Mohinder Kaur. The appellants filed a suit in the Court of Sub-Judge, Nakodar for the recovery of possession of land measuring 107 kanals 13 marla situated in Village Tut Sher Singh, Tehsil Nakodar against Hardial Singh and Gurpal Singh on 10-5-1976 as well as against their attorney Piara Singh. However, the learned Sub-Judge, IInd Class, Nakodar vide judgment dated 20-3-1979 dismissed the suit of the appellants holding that the judgment and decree Ex. P/2 obtained by the appellants is a collusive decree and further held that defendants Hardial Singh and Gurpal Singh were bona fide purchasers of the suit land. Thereafter, the appellants filed appeal on 20-3-1979 before Distt. Judge Jalandhar. The appeal was also dismissed by the Addl. District Judge on 24-9-1981. Dissatisfied with the dismissal of the appeal, the appellants have filed the present RSA before this Court.
7. During the pendency of the Regular Second Appeal an application under Order 22, Rule 1 read with Section 151 was moved to bring on the record the L.Rs. of Mangal Singh appellant No. 1 on 23-8-1999. It was pleaded that Mangal Singh-appellant was unmarried and died issueless. Mangal Singh’s only sister Punna was married to Hari Singh. Applicants Sube Singh and Balwinder Singh are the only two sons of said Hari Singh and Smt. Punna and as such they are maternal nephews of Mangal Singh deceased.
It is further pleaded that the parents of the applicants had already died, as such Mangal Singh was looked after by them. After death they claimed right in the property of deceased being legal heirs from maternal
8. It is further pleaded that they gained the knowledge about the present RSA on 15th August, 1999 and as such the present application has been filed to bring them on the record as L.Rs. of the deceased-Mangal Singh. Along with the application an application under Section 5 of the Limitation Act was also moved to condone the delay of 10 years 2 months and 25 days in filing of the present application. The aforesaid application was supported by an affidavit of Sube Singh. The said application was contested by the respondents in terms of reply dated 1-10-1999 wherein by way of preliminary objection it was inter alia pleaded that Article 120 of the Limitation Act deals with bringing of the L.Rs. on the record within 90 days from the date of death and another 60 days for setting aside of the abatement. Whereas the present application has been filed after a period of 10 years 2 months and 25 days. It was however, denied that Sube Singh learned about the RSA on 15th August, 1999. In fact, Sube Singh is residing in village Naurangpur since his childhood. Hari Singh father of Sube Singh and Balwinder Singh died on 29-5-1998 in village Naurangpur and he was residing in the same village. His wife Punna had died 10/ 12 years back in the same village. Therefore, it is not believable that the applicants were not aware of the litigation pending between Mangal Singh-appellant and the respondents. The story of gaining knowledge by Sube Singh after a period of 10 years 2 months 25 days is a concocted one. The applicants were fully aware of the RSA in this Court. With this plea, the respondents prayed for the dismissal of the application on the ground that this application stand abated, therefore, the same qua the applicants is to be dismissed.
9. I have heard the learned Counsel for the parties. Learned Counsel for the respondents contended that keeping in view that the legal heirs of Mangal Singh have not been brought on the record within a period of limitation as mentioned in the Article 120 of the Limitation Act. It is further submitted that this period of limitation has been prescribed with a view to bring an end to the litigation within time-bound framework. And if there is any lapse on the part of the parties in that event the law if abatement would stand in the way of the appellants.
On the other hand, it is contended by the learned Counsel for the appellants that bringing L.Rs. on the record is a procedural law and it cannot override the substantial justice. The case of the plaintiff/ appellants is not to be thrown on technical rules and procedures and they cannot be given precedents over doing the substantial justice in the Court. In support of his arguments the learned Counsel made a reference to Bhagwan Swaroop v. Mool Chand , where this matter was examined by the Apex Court. The Apex Court while relying on Sangram Singh v. Election Tribunal, Kotah observed that a code of procedure is designated to facilitate justice and further its ends, not a penal enactment for punishment and penalties; not a thing, designed to trip people up. This was reaffirmed in Kalipada Das v. Bimal Krishna Sen . It was also observed that in appropriate cases, taking into consideration all the facts and circumstances of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches in not making an application within the time provided an overall picture of the entire case, requires such course for furthering the cause of the justice. When negligence and laches are established on, the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of rare cases for furthering the ends of justice only and on proper terms. Reliance was also placed on Shri Sital Prasad Saxena (dead) by L.Rs. v. Union of India , where this matter was examined and the Supreme Court set aside the order of High Court of abatement by relying upon paras 6 and 8 of the judgment which reads as under:
The second error was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which as a seat far away from where parties in rural area may be residing. And in a traditional rural family the father may not have informed his son. about the, litigation to which he was involved and was a party. Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties.
Having heard the learned Counsel on either side we are satisfied that both the trial Court as well as the High Court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time.
10. After hearing the learned Counsel for the/parties, on the application, no contra-authorities have been produced by the learned Counsel for the respondents. Admittedly, the application was filed under Order 22, Rule 4 after a lapse of 10 years 2 months and 25 days and the said application was accompanied by an application under Section 5 to condone the delay to bring on the record the L.Rs. of the deceased-Mangal Singh. This Court is bound by the observation made by the Apex Court, in Bhagwan Swaroop v. Mool Chand (supra) and Shri Sital Prasad Saxena (dead) by L.Rs. v. Union of India (supra), wherein the Apex Court observed that the Court should see that a procedural law is not to overcome substantial justice which is the foundation of our Constitution. A party cannot be denied justice from the Courts of law on mere technicalities and penalties but resort to do substantial justice to the parties so as to decide their manner for all times to come.
11. In this view, application to bring the L Rs. of Mangal Singh is accepted and they are ordered to be brought on the record and Civil Miscellaneous No. 6025-C of 1999 is allowed.
12. During the course of arguments, the learned Counsel raised the following questions of law and facts:
1. Whether Mohinder Kaur was competent to make sale of the suit property when a decree Ex. P/2 dated 13-3-1974 was operative, and the said decree was finally upheld by Mohinder Kaur in her own Civil Suit No. 155 of 1974 which was finally decided on 13-1-1976 vide Ex. P/3, whereby she had accepted the judgment and decree passed by the Sub-Judge Nakodar, by judgment/ decree on 13-3-1974?
2. Whether the respondents Hardial Singh and his brother could purchase the suit property when a clear decree Ex. P/2 dated 13-3-1974 in relation to property in dispute was operative and the said decree was upheld between Mohinder Kaur and the appellants in the subsequent suit decided on 13-1-1976 by the competent Court ?
3. Whether the case is securely covered under Section 52 of the Transfer of Property Act?
4. Whether the sale deed, Ex. D. 4/1 and D5/1 are hit by the doctrine of lis pendens?
13. On the substantial questions of law I learned Counsel for the appellants contended that both the Courts below have ignored that, Mohinder Kaur wife of Bhana could not sell the property in dispute, since a compromise judgment and decree was passed between the parties vide Ex. P/2, which was operative and as such it is hit by Doctrine of Lis Pendens Under Section 52 of the Transfer of Property Act. In support of his arguments, he made a reference to AIR 1948 Privy Council Page 147 in the matter of Gouri Datt Maharaj v. Sukur Mohammed where similar view was expressed by the Apex Court. Reference was also made to Kedarnath Lal (dead) by his legal representatives v. Sheonarain.
To buttress his arguments the learned Counsel contends that it is not disputed that Mohinder Kaur had suffered a compromise decree Ex. P/2 in favour of the plaintiffs. It is not disputed that she filed an another Civil Suit No. 155 of 1974 in the Court of Shri Jagroop Singh PCS, Sub-Judge, IInd Class, Nakodar, wherein she challenged the setting aside of the judgment and decree dated 13-3-1974. It was claimed by her that judgment and decree Ex. P/2 was obtained by appellants-by way of misrepresentation and fraud etc. therefore, the same is not binding on the rights of Mohinder Kaur. It is also not disputed that during the pendency of the Civil Suit No. 155 of 1974, Mohinder Kaur sold the suit land to respondents Hardial Singh and his brother Gurpal Singh vide two registered sale deeds dated 11-6-1974 for Rs. 48,000/- each after the two months of filing of suit by her, but when her suit came for final decision she suffered a statement before the Court that she is bound by the decree Ex. P/2 dated 13-3-1974 and withdrew her suit. Thus according to the learned Counsel for the appellants both the sale deeds were governed by Section 52 of the transfer of Property Act and any sale made during the pendency of the Civil Suit No. 155 of 1974 and the parties were bound by the final decision of the case. Smt. Mohinder Kaur on the date of filing of the Civil Suit No. 155 was not owner as she had suffered a compromise decree dated 13-3-1974 Ex. P/2 through her Power of Attorney and she had only limited right to two acres of land which has-been given to her to maintain herself within an embargo not to alienate the same. This decree dated 13-3-1974 Ex. P/2 was not set aside while withdrawing the suit. Thus the decree dated 13-3-1974 Ex. P/2 remain enforceable. Hence, Mohinder Kaur was not authorised to alienate the suit land to defendant Nos. 1 & 2.
14. Thus keeping in view these circumstances, any sale made by Mohinder Kaur in favour of the respondent Nos. 1 and 2 is a nullity. The learned trial Court as well as the First Appellate Court has ignored this fact and the law.
15. The contention of the learned Counsel for the appellants, that the judgment and decree dated 13-3-1974 Ex. P/2 passed by Sub-Judge, Nakodar was in operation, therefore, the respondent could not sell the property to anyone, was considered by the trial Court while appreciating the evidence. The learned trial Court kept in view the statement of Sewa Singh an attesting witness to the Power of Attorney Ex. D/1 executed by Mohinder Kaur widow of Bhana, wherein it was categorically mentioned that Thakur Singh Attorney, was not competent to enter into a compromise with the plaintiffs. Thakur singh was only authorised to pursue the case and did not give any writing to him to enter into a compromise with the plaintiffs. After going through the Power of Attorney Ex. D/1 it manifests that Thakur Singh, Attorney was not empowered to enter into compromise with the plaintiffs on behalf of Mohinder Kaur widow of Bhana (executant). Therefore, the statement of Thakur Singh having suffered a compromise decree in favour of plaintiffs was held to be outcome of fraud played with the widow of Bhana. Hence the decree Ex. P/2 is a nullity. It was with this background that Smt. Mohinder Kaur filed Civil Suit No. 155 of 1974 in the Court of Sh. Jagroop Singh, wherein she challenged the said decree. The decree Ex. P/2 dated 13-3-1974 was not the outcome of the consent given by Mohinder Kaur widow of Bhana, therefore, the said -decree was not binding upon her.
16. On the other hand, it is contended by the learned Counsel for the respondents that the provisions of Section 52 of the Transfer of Property Act are not attracted to the facts of the present case. The respondent Nos. 1 & 2 who purchased the suit property through their Attorney from Mohinder Kaur have taken physical possession of the suit land which was with Mohinder Kaur and mutation was also recorded in favour of Mohinder Kaur. Respondent Nos. 1 & 2 were not aware of any collusive decree dated 13-3-1974 alleged to have been secured by the plaintiffs/appellants, copy of which is Ex. P/2. No notice or any communication have been brought on the record by the. plaintiffs to prove that the defendants were aware of the collusive decree. Defendants/respondents who were residents of England purchased the suit land through their Attorneys from the Attorneys of Mohinder Kaur. It rules out the possibility of defendants knowing the collusive decree dated 13-3-1974. Therefore, the sale deeds Exs. D/4 and D/5 have been proved on the record through which Mohinder Kaur received a sum of Rs. 96,000/- from the defendants as sale consideration of the suit land. It was on account of this reason than the Trial Court has ignored the decree Ex. P/2 dated 13-3-1974 and held that defendant Nos. 1 and 2 as bona fide purchasers. Moreover, when the suit land was purchased by respondent Nos. 1 & 2, the suit No. 155 of 1974 filed by Mohinder Kaur was later on dismissed as withdrawn, therefore, the provisions of Section 52 of Transfer of Property Act are not attracted to the facts of the present case.
17. So far as the suffering of the state-went of Mohinder Kaur at the time of withdrawing her suit on 13-1-1976 in Civil Suit No. 155 of 1974 that the decree dated 13-3-1974 Ex. P/2 suffered in Civil Suit No. 155 of 1974 is hardly of any significance. This statement was never suffered by her in Civil Suit No. 100 of 1973 whereby the decree Ex. P/2 was passed on 13-3-1974. Therefore, her statement given in the Civil Suit No. 155 of 1974 filed by her would be hardly of any consequence because she has already sold her suit property two months after the filing of the Suit No. 155 of 1974 in the Court of Sh. Jagroop Singh, Sub-Judge, Nakodar, Admission made in the later decree will not make the earlier decree valid when the decree dated 13-3-1974 Ex. P/2 was subject of decision, in the later suit filed by the present appellants. It was only Mohinder Kaur who was the best evidence the plaintiffs could produce to throw light on the controversy involved in the case but they failed to produce in the present suit. Resultantly, the plaintiff/appellants cannot derive any benefit out of the decree dated 13-3-1974 Ex. P/2 through which they are claiming themselves to be the owners of the property.
18. In view of the concurrent findings, recorded by the trial Court and the First Appellate Court, I do not subscribe to the arguments advance by the learned Counsel for the parties and observed that the substantial question raised by the counsel is answered accordingly.
19. In the light of aforesaid discussion, there is no force in this appeal and the same is hereby dismissed.