It is well settled that the party against whom a finding is recorded has got a right of appeal even if ultimate decision may be in his favour if that finding operates as resjudicata in a subsequent suit or proceedings; but if it does not operate as rejudicata, then such a party has no right of appeal.
From the narration of above facts, it is amply clear that the finding on Issue No.1. in the decision Ex. PW5/A was returned after taking into account the entire evidence in respect of gift deed which was a matter directly and substantially in issue decided in the earlier suit (Ex. PW5/A) between the parties under whom the present plaintiff and defendant are claiming their title , therefore, the said finding on issue No.1 Ex.PW5/A operates as resjudicata in terms of the provisions of Section 11 of the C.P.C. Thus, in my view the judgment relied upon by the learned counsel for the appellant in the case of Ved Parkash (Supra) is not applicable because even if the main suit was dismissed vide judgment Ex. PW5/A but the finding recorded on issue No.1 was deciding the right of the parties would certainly attract provision of Section 11 of the C.P.C.and defendant No.1/appellant had a right to challenge that finding by way of further appeal. Once it has not been done, so it cannot be urged by the learned counsel for the appellant that it would not operate as resjudicata as he had no opportunity to challenge that finding in appeal. Moreover, issue deciding title of the property is a substantial issue and any decision on that issue in an earlier litigation between the same parties or parties or their predecessor-in-interest would certainly attract the provisions of Section 11 of C.P.C.
Punjab-Haryana High Court
Arjun Singh vs Bachan Singh And Others on 22 December, 2008
RSA No.2970 of 2008
CORAM: MR. RAKESH KUMAR JAIN
Citation:2009(3) Civil court cases 8
Defendant No.1 Arjan Singh is in second appeal against the judgment and decree of learned Addl. District Judge (Adhoc) Fast Track Court, Amritsar, dated 30.5.2008 by which the suit of the plaintiff was decreed and the judgment and decree of the Civil Judge (Senior Division) Amritsar dated 27.7.2004 was set aside.
The learned counsel for the appellant has raised following questions of law in this appeal.
(i) "Whether in a suit, if one of the issues is decided against the defendant but the suit of the plaintiff is dismissed and no appeal is filed by the defendant to challenge that issue though right to appeal is available, whether finding on the issue decided against the defendant would operate as res-judicata ?" and (ii) "Whether an issue deciding the title of the parties to a property is a substantial issue and shall attract the provisions of Section 11 of the C.P.C., if it is not challenged in appeal by the defendant inspite of the fact that the suit of the plaintiff is dismissed ?".
In brief, the facts of the case are that Jowala Singh son of Attar Singh mortgaged the land bearing pre-consolidation number with Beant Singh, Surain Singh, Narain Singh and Bhagat Singh. Narain Singh died leaving behind no legal heir. Bhagat Singh died leaving behind Santa Singh as his legal heir. Santa Singh died leaving behind no child. The property was inherited by their brother Beant Singh and Surain Singh. Surain Singh died leaving behind Mohinder Singh (defendant No.2), Taro (defendant No.3) and Gejo (defendant No.4). Beant Singh left behind Arjan Singh (defendant No.1). Beant Singh's brother Darshan Singh also died without leaving behind any legal heir. In this case, Arjan Singh (defendant No.1/appellant) is the mortgagee to the extent of ½ share and the remaining ½ share was under mortgage with Mohinder Singh (defendant No.2), Taro (defendant No.3) and Gejo (defendant No.4). The mortgage deed dated 26.3.1923 was in respect of 84 kanals of land for an amount of Rs.4,500/-. The land in question was irredeemable for 60 years. Jowala Singh (mortgagor) died leaving behind Ujjagar Singh, his adopted son as his legal heir. Ujjagar Singh also died leaving behind his sister Isso. Isso too had died leaving behind her legal heirs Datto and Puran Singh. Puran Singh died on 16.8.1994. Datto also died leaving behind Bachan Singh (plaintiff) as her son. Inheritance of Puran Singh devolved upon the plaintiff vide mutation No. 953. Thus, the plaintiff is the mortgagor of the suit land, out of which, ½ share of the mortgaged land in the hands of Mohinder Singh (defendant No.2), Taro (defendant No.3) and Gejo (defendant No.4) has already been redeemed and is now claiming to redeem ½ share of the land from Arjan Singh- defendant/appellant No.1. on payment of Rs.2250/- i.e. 1/2 share of the total mortgage amount of Rs. 4500/-.
Only defendant No.1.contested the suit and filed the written statement taking preliminary objection that the plaintiff has no right, title or interest in the suit property. On merit, it was submitted that plaint is vague because complete particulars of the mortgaged property were not given. Defendant No.1 proclaimed himself to be the owner and denied that ½ share was inherited by Mohinder Singh (defendant No.2), Taro (defendant No.3) and Gejo (defendant No.4) . It was also claimed that he had become the owner of the suit property by lapse of time and thus prayed that suit be dismissed.
On the pleadings of the parties, following issues were framed on 18.11.1996:-
1Whether the plaintiff is entitled for the possession by way of redemption ? OPP
2.Whether Jowala Singh mortgaged the land measuring 84 kanals in favour of Beant Singh, Surain Singh, Narain Singh and Bhagat Singh by way of mortgage deed dated 26.3.1923 ? OPP 3 . Whether the plaintiff has got no right, title or interest in the suit land ? OPD 4 . Whether the present suit is not maintainable ? OPD
5. Wehther Jowala Singh adopted Ujjagar Singh during his life time. OPD
6.Whether Datto and Puran Singh are the legal heirs of Smt.Isso ? OPP
7.Whether Isso has got no concern with the family of Jowala Singh OPD
8.Whether the land in suit has been allotted in lieu of old khasra numbers ? OPD
9.Relief:
Both the parties led their respective evidence. The plaintiff examined Tara Singh son of Jhanda Singh as PW-1, Kulwant Singh son of Bahadur Singh as PW 1 (wrongly numbered ), Tara Singh son of Mota Singh as PW 2, G.D.Sodhi,Advocate as PW-3, Ramesh Pal, Senior Assistant as PW 4, plaintiff Bachan Singh as PW-5 and closed their evidence. As against this, Arjan Singh appeared as DW-1 and thereafter his evidence was closed by order.
The trial Court dismissed the suit of the plaintiff on the ground that he has no locus standi to file the suit as he is not proved to be the mortgagor. It was held that the plaintiff was claiming his right of being a mortgagor through Isso, sister of Ujjagar Singh, who was adopted son of Jowala Singh and therefore, after his adoption to the family of Jowala Singh, Ujjagar Singh was totally transplanted to the adoptive family and Isso being natural born sister of Ujjagar Singh was not his legal heir and thus the plaintiff was also not found to be the legal heir of Ujjagar Singh.
It is pertinent to mention here that Jawala Singh was the mortgagor and Beant Singh, Surain Singh, Narain Singh and Bhagat Singh were the mortgagees. It is also pertinent to mention that the present appellant/defendant No.1 is the son of mortgagee Beant Singh and defendant Nos. 2 to 4 are the legal heirs of the mortgagee Surain Singh from whom the plaintiff has already redeemed the land to the extent of ½ share. Third mortgagee Narain Singh had left behind no legal heir. Fourth mortgagee Bhagat Singh died leaving behind Santa Singh whereas Santa Singh died without leaving any legal heir. Therefore, the mortgagee rights were inherited by surviving mortgagees Beant Singh and Surain Singh, out of whom ½ share of the suit land has already been redeemed by the plaintiff from the legal heir of Surain Singh and for redeeming the other 1/2 share from Arjan Singh son of Beant Singh, the present suit has been filed. The plaintiff had taken up the plea before the trial Court that Ujjagar Singh adopted son of Jowala Singh ( mortgagor) had given the land in question by way of gift deed (Ex.D 3) dated 15.5.1965 to Sewa Singh (father of the plaintiff). Sewa Singh filed a suit against Beant Singh (father of Bachan Singh defendant No.1/appellant) and others for possession by way of redemption of the suit land in which one of the issues was whether plaintiff (Sewa Singh) has locus standi to file the suit . The said issue was answered in favour of Sewa Singh. However, the main suit was dismissed on the ground that Sewa Singh cannot redeem the land prior to the expiry of 60 years. In the present case, the trial Court dismissed the suit on the ground that these facts were not pleaded in the plaint, therefore, any evidence led in this regard cannot be looked into.
During the pendency of the appeal before the learned first Appellate Court, the plaintiff filed an application under Order 6 Rule 17 of Code of Civil Procedure (in short CPC) seeking the amendment of the plaint. The plaintiff took the plea that in the earlier litigation in Civil Suit No.49 decided on 30.11.1967 by the Court of Mr.B.S.Teji and the appeal decided by the Court of Mr. K.S.Tiwana, learned Addl. District Judge, Amritsar on 5.2.1970, it was held that the land can be redeemed after the expiry of 60 years and since the period has not expired, therefore, the plaintiff is not entitled to get the land redeemed. It was also held in the said suit that Ujjagar Singh son of Jowala Singh, (original mortgagor) had executed a valid gift deed dated 15.5.1965 during his life time in favour of Sewa Singh (father of the plaintiff). Though in the said litigation between predecessor-in-interest of the present parties, it was further held that Sewa Singh had locus standi to file the suit because title has been devolved upon him in the suit property (mortgaged property) by virtue of the gift deed. The said application for amendment was allowed vide order dated 15.12.2006 and the plaintiff was permitted to take these pleas in the plaint. Appellant/defendant No.1 filed a Civil Revision No. 58 of 2007 against the order of the learned first Appellate Court dated 15.12.2006, but this Court vide its order dated 25.9.2007 dismissed the revision petition and that order had attained finality.
Since the evidence was already on record and pleadings were allowed to be amended, the learned first Appellate Court decreed the suit holding that the plaintiff is claiming the land being the legal heir of Sewa Singh. Copy of that judgment is Ex. PW5/A of the Court of Mr.B.S.Teji Sub Judge, Amritsar in which it was held that Sewa Singh had locus standi to file the suit but since redemption was to be carried out after expiry of 60 years and that period had not expired, therefore, the suit was dismissed. Appeal against the said judgment and decree dated 30.11.1967 was filed before Sh.K.S.Tiwana, learned Addl.District Judge, Amritsar, in which it was also held that the plaintiff had locus standi to file the suit but the land could not be redeemed till the expiry of period of 60 years. Thus, it was held by both the Courts below that Sewa Singh (father of the plaintiff) had locus standi to file the suit since the property in dispute had been gifted to him by Ujjagar Singh and the plaintiff (Bachan Singh) being the son of Sewa Singh, has inherited his rights to get the property in dispute redeemed from the possession of the mortgagee. It was also held by the learned first Appellate Court that out of the total mortgaged land, ½ share has already been got redeemed by the plaintiff from defendant Nos. 2 to 4 and an entry regarding redemption has also been incorporated in the jamabandi.
Mr.B.R.Mahajan, learned counsel appearing for the appellant has vehemently contended that there is no evidence with regard to adoption of Ujjagar Singh by Jawala Singh (mortgagor) and in the absence of any evidence in respect of the adoption, no title has passed either in favour of Ujjagar Singh or in favour of Sewa Singh or the plaintiff. This argument raised by the learned counsel for the appellant has been answered by the trial court while deciding issue No.5, which is reproduced below:-
"Onus to prove this issue was on the defendants. Defendant has placed on record copy of judgment in suit No. 280 of 1923 titled 'Ujjagar Singh adopted son of Jawala Singh v. Jawala Singh etc.' Certified copy of that judgment is Ex. D1. Counsel for the plaintiffs argued that Ujjagar Singh has filed this suit as adopted son of Jowala Singh against Jowala Singh and others during the life time of Jowala Singh in the year 1923 and in that suit plaintiff claimed the suit land as ancestral qua himself and it was held that plaintiff Ujjagar Singh, therefore, cannot claim the land to be ancestral qua himself as adopted son of Jowala Singh, even if, the adoption be an established fact, simply because the same was ancestral in the hands of his adoptive father, so Ujjagar Singh was held to be adopted son of Jawala Singh in that judgment. Though Jowala Singh had denied the same but when the court held that adoption is an established fact, so it is proved that Ujjagar Singh was adopted son of Jawala Singh and as such, this issue is decided in favour of the plaintiff and against the defendants".
It is next argued by learned counsel for the appellant that the learned first Appellate Court has solely relied upon the judgment dated 30.11.1967 Ex.PW5/A to reverse the findings of the trial Court,but the judgment is not the conclusive proof because the suit filed by Sewa Singh,(predecessor-in-interest of Bachan Singh/plaintiff) claiming redemption was dismissed and there was no occasion or opportunity with the defendants to challenge the findings recorded in the said judgment. In such circumstances, it was argued that adverse finding on issue No.1 in Civil suit No.49 (Sewa Singh v. Beant Singh and others) decided on 30.11.1967 vide judgment Ex. PW5/A cannot operate as resjudicata or have any binding effect on the rights of the appellant. In this regard, Mr. Mahajan has relied upon a decision of this court in the case of Ved Parkash vs. Balram Dass 1993 (3) P.L.R.420.
As against this, Mr.Amarjit Markan, learned counsel appearing for the caveator/respondents/plaintiff has vehemently argued that since earlier decision (Ex. PW5/A) was between the predecessor-in- interest of the parties in respect of the same subject matter and issue No.1 was in respect of the right/locus standi of the plaintiff (Sewa Singh) for the purpose of title to the suit property on the basis of gift deed has been decided in his favour, therefore, the same operates as resjudicata even if the suit and the appeal were dismissed on other grounds. Learned counsel for the caveator/ respondents has relied upon a decision of this Court in the case of Sohan Singh vs. Murti Rani and others 2008 (2) P.L.R.591 and Gurdip Singh v. Arjan Singh 1992 P.L.J.110.
I have heard the learned counsel for the parties and have perused the record with their assistance.
It is well settled that the party against whom a finding is recorded has got a right of appeal even if ultimate decision may be in his favour if that finding operates as resjudicata in a subsequent suit or proceedings; but if it does not operate as rejudicata, then such a party has no right of appeal.
Before divulging upon the arguments raised by learned counsel for the appellants, it is necessary to notice the facts of the case decided vide judgment Ex. PW5/A. In the said case, Sewa Singh filed a suit for possession by way of redemption in respect of the suit land on payment of Rs.4500/- alleging that Jowala Singh had mortgaged the suit land on 26.3.1923 for a sum of Rs.4500/- in favour of Beant Singh (defendant No.1), Mohinder Singh (defendant No.2) Smt. Tara (defendant No.3) and Smt. Gejo (defendant No.4). The plaintiff was claiming his ownership over the suit land on the basis of gift deed dated 15.5.1965 executed by Ujjagar Singh, adopted son of Jowala Singh (original mortgagor). The suit was contested by the defendants therein alleging that Ujjagar Singh did not execute any gift deed in favour of the plaintiff and also contended that Jowala Singh did not adopt Ujjagar Singh and thus, Ujjagar Singh had no right in the suit property and could not have gifted it to the plaintiff (Sewa Singh). Therefore, it was claimed that the plaintiff Sewa Singh had no right to file the suit. On these pleadings, the issues were framed in which Issue No.1 was "Whether the plaintiff has the locus standi to file the present suit" and issue No.6 was " Whether there has been any litigation between the parties regarding the suit land, if so its effect? OPD". The trial Court in the said suit dealt-with issue Nos. 1 and 6 together and recorded the following finding:-
"The defendants denied the plaintiff's right to file the suit. It was contended that Ujjagar Singh was not the adopted son of Jowala Singh original mortgagor who gifted away the land to plaintiff having no interest and title in it. It was also contended that said Ujjagar Singh filed a suit for declaration in the year 1923 against the defendant mortgagees and the same was dismissed. Thus, the suit is barred by the principle of resjudicata.
Plaintiff appeared as PW 4 and produced three witnesses to prove the gift deed Ex.P-1. He has also placed on record Jamabandi for the year 1962-63 Ex-P-2, Missal Haqiat Ex-P-3, Naksha Haqdarwar Ex.P-4 Khatauni Ishtimal, Ex.P-5, Khatauni Paimash Ex.P-6 copy of the mutation No.294 Ex.P-7, Khatauni Ishtimal Ex.P-8 and copy of the mortgage deed Ex.P-9. PW Shri Bhagwan Dass is the scribe and PW 2 and PW 3 are the attesting witnesses of Ex P-9. Thus by documentary evidence it is proved that Ujagar Singh executed Ex-P-1 in favour of the plaintiff. Plaintiff as PW-4 deposed that 1and in dispute was firstly owned by Jowala Singh and after him devolved upon Ujagar Singh his adopted son and Ujagar Singh has executed Ex- P-1 in his favour. There is no rebuttal to the documentary evidence on the defendants side.
From other documents Ex-P-2 to P-8 to which presumption of truth attaches, it is found that Ujagar Singh has been shown the adopted son of Jowala Singh in the column of ownership and thereafter the plaintiff has been shown its owner.
Defendant on the other hand produced copy of the judgment Ex-D 2, copy of the plaint Ex-D1 and appeared as his own witness as DW-
1. I have gone through the records and carefully perused the record and find that Ex-D 2 does not say any thing with regard to the adoption of Ujagar Singh. The suit was dismissed on the point of ancestral nature of land and right to file a declaratory suit by an adopted son. Thus the question of adoption was not decided in Ex.D-2. Thus there is res-judicate and the suit is barred. I decide issue No.1 in favour of the plaintiff and issue No.6 against the defendants."
The redemption period was to start after the expiry of 60 years and as per the mortgage deed, it was the case of the plaintiff in the said case (Ex..PW5/A), that redemption period of 60 years in the mortgage deed is penal and onerous and creates a clog on redemption. This plea was not accepted and it was held that stipulation of 60 years cannot be regarded a clog on equity of redemption and the stipulation was not found to be un- conscienceable and as such the suit was dismissed on this ground.
From the narration of above facts, it is amply clear that the finding on Issue No.1. in the decision Ex. PW5/A was returned after taking into account the entire evidence in respect of gift deed which was a matter directly and substantially in issue decided in the earlier suit (Ex. PW5/A) between the parties under whom the present plaintiff and defendant are claiming their title , therefore, the said finding on issue No.1 Ex.PW5/A operates as resjudicata in terms of the provisions of Section 11 of the C.P.C. Thus, in my view the judgment relied upon by the learned counsel for the appellant in the case of Ved Parkash (Supra) is not applicable because even if the main suit was dismissed vide judgment Ex. PW5/A but the finding recorded on issue No.1 was deciding the right of the parties would certainly attract provision of Section 11 of the C.P.C.and defendant No.1/appellant had a right to challenge that finding by way of further appeal. Once it has not been done, so it cannot be urged by the learned counsel for the appellant that it would not operate as resjudicata as he had no opportunity to challenge that finding in appeal. Moreover, issue deciding title of the property is a substantial issue and any decision on that issue in an earlier litigation between the same parties or parties or their predecessor-in-interest would certainly attract the provisions of Section 11 of C.P.C.
In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed but without any order as to costs.
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