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Kundan Lal and ors. Vs. Hukam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 871 of 1948
Judge
Reported inAIR1952P& H115
ActsSpecific Relief Act, 1877 - Sections 42; Evidence Act, 1872 - Sections 32
AppellantKundan Lal and ors.
RespondentHukam Singh and ors.
Appellant Advocate K.C. Nayar, Adv.
Respondent Advocate I.D. Dua, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Nanhi v. Badlu
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........declaration that the decree was collusive and was ineffective as regards their rights and that the suit by defendants 1-4 had been brought merely to create evidence against them. both the courts have held in favour of the plaintiffs and the defendants have come up in appeal to this court.3. the first question that has been raised is that the suit was premature and at any rate the landlords had no right to bring the suit. there is no doubt that by the compromise which was entered between defendants nos. 1 to 4 and ganda an attempt was made to create evidence in favour of defendants nos. 1 to 4, besides, this is a cloud on the ultimate rights of the landlords and they had a right to bring the present suit, and i respectfully agree with the rule laid down in 'bhagat singh v. mathra', air.....
Judgment:

Kapur, J.

1. This is an appeal against a judgment and decree of Mr. Tek Chand Vij, Senior Subordinate Judge, Jullundur, affirming the decree of the trial Court.

2. A widow, Ishri, was the occupancy tenant as a widow of her husband. She made a gift of it to Ganda, and a declaratory suit was brought by defendants Nos. 1 to 4 claiming to be the collaterals of Ishri's husband. There was a compromise between the donee and these defendants by which a decree was passed in favour of defendants 1 to 4.

2a. The landlords then brought the suit out of which this appeal has arisen for declaration that the decree was collusive and was ineffective as regards their rights and that the suit by defendants 1-4 had been brought merely to create evidence against them. Both the Courts have held in favour of the plaintiffs and the defendants have come up in appeal to this Court.

3. The first question that has been raised is that the suit was premature and at any rate the landlords had no right to bring the suit. There is no doubt that by the compromise which was entered between defendants Nos. 1 to 4 and Ganda an attempt was made to create evidence in favour of defendants Nos. 1 to 4, Besides, this is a cloud on the ultimate rights of the landlords and they had a right to bring the present suit, and I respectfully agree with the rule laid down in 'Bhagat Singh v. Mathra', AIR (13) 1926 Lah 275, where it was held that where evidence is being created, it brings the case within Section 42 of the Specific Relief Act and a suit can be brought under that section (Section 42) for declaration.

4. It is then submitted that the finding in regard to the relationship of defendants Nos. 1 to 4 with Ishri is wrong, because the learned Judge has relied upon a judgment of the Lahore High Court in 'Hazura Singh v. Mohindar Singh', ILK (1937) Lah 732. The correctness of this judgment is assailed on the ground that this was not followed in another judgment of the Lahore High Court, 'Dogar Mal v. Sunam Ram', AIR (31) 1944 Lah 58.

5. I am of the opinion that in regard to Pandas' 'bahis' such as the ones which were produced in this case, which have got no index, in which several new pages have been added and in which it is not known as to who the writer of the particular entries was, the findings of the Courts below are right, and in my opinion the view taken by the Lahore HighCourt in 'Hazura Singh's case', (ILR (1937) Lah 732) seems to be correct in regard to these 'bahis'. This judgment was again followed in a Single Bench judgment of the Lahore High Court in 'Mt. Nanhi v. Badlu', AIR (27) 1940 Lah 245.

6. I am therefore of the opinion that thisappeal must fail and the suit of the plaintiffsdecreed with costs throughout.


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