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Sukhdip Singh Vs. Arjan Singh Mihan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 126 of 1959
Judge
Reported inAIR1961P& H326
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 10(1)
AppellantSukhdip Singh
RespondentArjan Singh Mihan Singh and anr.
Appellant Advocate L.D. Kaushal and K.N. Tewari
Respondent Advocate K.S. Thapar, M.R. Sharma and S.B.L. Mathur
DispositionAppeal dismissed
Cases ReferredEbrahim Mulla Rasulji v. Chhatrasinhji
Excerpt:
.....discretionary power consider the prima facie equities as well. 1830 of 1959) is concerned, if the order refusing leave to the appellant under order 22, rule 10, is affirmed, then obviously the appellant cannot appeal against the compromise decree which is clearly binding on him. this appeal would thus also fail and is hereby dismissed......has matured into title on account of adverse possession for the full statutory period,3. shrimati sukhdev kaur alias khazan kaur, the defendant in the suit, according to the plaintiff, is living with one bhag singh in mohalla arna barna, patiala, as his wife, though she claims to be the widow of surjan singh, deceased brother of the plaintiff. on her application, the revenue authorities mutated in her name the property in suit to the extent of half share of surjan singh, deceased.4. the plaintiff in the present suit denied the status of shrimati sukhdev kaur as widow of surjan sfngh and in the alternative also pleaded that if shrimati sukhdev kaur is proved to be surjan singh's widow, even then she is not entitled to surjan singh's share, because the plaintiff's adverse possession for.....
Judgment:

1. The facts which have given riseto this appeal may be stated in a nutshell. ArjanSingh and his brother Surjan Singh were owners inpossession of land, the particulars of which are contained in the judgment of the Court of first instance.After consolidation in village Mehargarh BattiEstate, 322 tehsil Patiala, khasra Nos. 92 and 99measuring 50 bighas and 4 biswas were allotted invillage Mehargarh Batti and the share of ArjanSingh, plaintiff, in this land was one-half, the otherhalf being the share of Surjan Singh, his brother,Similarly, Arjan Singh, plaintiff, and his brother Surjan Singh owned land in equal shares measuringabout 110 bighas and I biswa situated in villageKaranpur Estate 323, tehsil Patiala. After consolidation of holdings, in lieu of this land, khasraNos. 46, 2, 37 and 63 were allotted in village Karanpur. '

2. Arjan Singh, plaintiff's case as alleged is that his brother Surjan Singh died issueless sometime in 1999 Bk. without leaving any other heir except the plaintiff, who came to occupy his brother's share as well immediately after the tatter's death. He has thus been enjoying the property in dispute without any interruption or interference for the last 20 years or so, with the result that his possession over this property has matured into title on account of adverse possession for the full statutory period,

3. Shrimati Sukhdev Kaur alias Khazan Kaur, the defendant in the suit, according to the plaintiff, is living with one Bhag Singh in Mohalla Arna Barna, Patiala, as his wife, though she claims to be the widow of Surjan Singh, deceased brother of the plaintiff. On her application, the revenue authorities mutated in her name the property in suit to the extent of half share of Surjan Singh, deceased.

4. The plaintiff in the present suit denied the status of Shrimati Sukhdev Kaur as widow of Surjan Sfngh and in the alternative also pleaded that if Shrimati Sukhdev Kaur is proved to be Surjan Singh's widow, even then she is not entitled to Surjan Singh's share, because the plaintiff's adverse possession for over 12 years has matured into valid title. It is further pleaded that in certain proceedings under Section 447, 468 and 380 of the Indian Penal Code between the parties to the suit, the defendant actually admitted the adverse possession of the plaintiff over the property in suit. This admission was also pleaded to be binding on the defendant. It is on these allegations that the plaintiff claimed a declaration that he is the full-fledged owner of the property in dispute, half of which belongs to him in his own right and the other half on account of adverse possession for the full statutory period.

5. Shrimati Sukhdev Kaur, defendant, denied the adverse possession of the plaintiff and also alleged that she had never admitted his adverse possession as pleaded in any litigation inter partes. Claiming herself to be the widow of Surjan Singh, she asserted her right to succeed to the property of her late husband.

6. On the pleadings of the parties, the following issues were settled:-

(1) Whether the plaintiff's possession over the land in dispute has become adverse, and

(2) whether issue of adverse possession has already been decided by a Civil Court between the parties and that decision is res judicata in the Case? The trial Court decided issue No. 1 against the plaintiff and issue No. 2 against the defendant. As a result of the decision on issue No. 1, the plaintiff's suit was dismissed with costs on 26th June, 1959. Arjan Singh filed an appeal in the Court of District Judge, Patiala, which was disposed of as a result of a compromise between the parties on 17-11-1959. By means of this compromise the plaintiff was granted a decree for declaration to the effect that he is the owner and in possession of the land in dispute, but he was directed by means of the decree to pay Rs. 5,000/- to Shrimati Sukhdev Kaur in the following manner:-

Rs. 2,000/- to be paid to her within a week from 17th November, 1959; Rs. 500/- within a week from Naimani 2017 Bk. and Rs. 500/- on Lohari 2017 Bk; the balance of Rs. 2,000/- to be paid in equal instalments of Rs. 200/- each per crop, the first instalment to be paid on Nirjala Akadshi 2018 Bk. and thereafter each instalment of the like amount to be paid on Nimani and Lohari every year. In case of default of any instalment, Shrimati Sukhdev Kaur was entitled to recover the whole of the amount due by attachment and sale of the property in dispute and till the payment of the full amount of Rs. 5,000/ the property in dispute was to be deemed to be charged. It appears that on the date on which the lower appellate Court passed the compromise decree Sukh-dip Singh, minor son of one Daya Ram Jat resident of Jogipur, through his father as next friend, applied to the lower appellate Court under Order 22, Rules 10 and 11, Code of Civil Procedure, for being impleaded as a party in place of Shrimati Sukhdev Kaur on the ground that the latter (Shrimati Sukhdev (Kaur) had executed a deed of gift in his favour comprising the whole of her property and that on account of this gift she was not competent to enter into any compromise with Arjan Singh, with respect to the property in dispute. It was prayed that his name may be substituted in place of Shrimati Sukhdev Kaur and he be permitted to contest the compromise, which, according to him, was wholly unauthorized. This prayer was disallowed by the learned Additional District Judge, Patiala, in the following words:-

'The parties in appeal have already compromised the case and have presented the compromise deed in this Court and at this stage this application has been presented before me. The applicant states himself to be transferee pendente lite and therefore is not entitled to be made a party in this case at this stage. The application is accordingly rejected.' Two appeals have been filed in this Court: F. A, F. Order 126 of 1959 is directed against the order of the learned Additional District Judge rejecting the application under Order 22, Rules 10 and 11 of the Code of Civil Procedure, and R. S. A. 1830 of 1959 is directed against the compromise decree passed in the appeal Arjan Singh v. Shrimati Sukhdev Kaur By learned Additional District Judge on 17th November, 1959. In both of them, Sukhdip Singh minor is the appellant.

7. Dealing with F. A. F. O. No. 126 of 1959, it is conceded that under Order 22, Rule 10, Code of Civil Procedure, it is discretionary and not obligatory for the Court to grant leave to an applicant to continue the suit or the appeal as the Case may be. An assignee is thus not entitled as a matter of right to continue the proceedings. It is, however, contended that on the facts and circumstances of the instant case the Court has failed to exercise its discretion on sound judicial principles and the following cases have been cited in support of this contention. Lakshan Chunder De v. Nikunjamoni Dassi, AIR 1924 Cal 188, a decision by a Division Bench of the Calcutta High Court; the head note of this case reads as follows:-

'An applicant who invokes the aid of Rule 10 of Order 22 is not entitled, as a matter of right, to an order in his favour, regardless of delay or laches. The Court undoubtedly has a discretion in the matter which must be judicially exercised.

An application under Rule 10 will be allowed to avoid the multiplicity of litigation.'

The learned counsel has submitted that in that case, the appeal was allowed and the application under Order 22, Rule 10, was granted by the High Court on appeal.,

8. In the reported case, the plaintiffs had sued the defendants for the declaration of their right to a room which had been built over the porch of another house. The right, title and interest of the plaintiff, however, were sold on 22nd November, 1919, an3 on 4th December, 1919, there was a settlement between the plaintiffs and the defendants on the basis of which a decree was ordered to be drawn up in terms of the settlement. After the confirmation of the sale and the grant of sale certificate, the purchaser applied for being added as a party.

This was disallowed by the learned Single Judge of the Calcutta High Court sitting on the original side on a two-fold ground: One that there was no suit pending and the other that the application was very much delayed. On appeal, on the first point, the learned Judges held that the suit was still pending because a finding had not been drawn up and signed, with the result that the decision of the learned Single Judge on this point was held to be wrong in law. On the second point, after anxiously considering the matter, the Division Bench held that, in view of the circumstances that the auction-purchaser would have to file another suit, which would result in protracted litigation, it was most convenient to order an investigation into the bona fides of the settlement in those proceedings.

9. The next case cited is Nanjammal v. Eswa-ramurthi Goundar, AIR 1954 Mad 592; head-note (b) on which reliance has been placed is in the following terms:-

'Under Order 22, Rule 10, it is no doubt true that the Court has got discretion to implead or not to jmplead persons as parties, but that discretion should be exercised judicially and not arbitrarily.

Thus where the suit has not terminated when the application for impleading the applicants as parties is filed and the application is made long prior to the application to record the compromise is filed, it is the duty of the Court to decide whether the prayer of the applicants should or should not be granted on the merits. It is wrong to hold that the mere existence of the compromise in the hands of the party would be sufficient to terminate the suit so as to preclude the Court from exercising its jurisdiction under Order 22, Rule 10.'

The third case referred at the Bar is Joti Lal Sah v. Sheodhayan Prashad, AIR 1936 Pat 420, head-note (c) of which lays down as follows:-

'No doubt Order 22, Rule 10, gives the Court a discretion in allowing or refusing an application by the successors in interest to continue the litigation, but leave should not be unreasonably refused.'

Dr. Niranjan Nath v. Sardar Mal etc., AIR 1950 Rajasthan 31 is the next case quoted. Reliance has been placed on head-note (b) which lays down that although the assignee even if he does not become a party is bound by the decision against the assignor who is already a party to the suit, the option to become a party or to let the assignor carry on the litigation rests with the assignee and the leave to substitute the assignee in place of the assignor should not be unreasonably refused, specially where the assignee is the only person, who is really interested in the conduct of the suit. Reliance for this dicta was placed on the Patna decision in Joti Lal Sah's case, AIR 1936 Pat 420.

10. The fast case relied upon is Ebrahim Mulla Rasulji v. Chhatrasinhji, AIR 1954 Sau 20; head-note (b) on winch counsel has relied states that:-

'Where 'prima facie' the right of the applicant to be brought on the record is established, the question as to the validity of the transfer should be decided in the suit itself rather than in an application under Order 22, Rule 10.'

After going through the judgments cited, it seems to me to be clear that each one of them proceeded on its own peculiar facts. It is incontrovertible that the scope of Order 22, Rule 10, is enabling, the underlying principle of which is that the progress of a suit or an appeal should not be arrested merely by reason of a devolution of the interest of a party in its subject-matter with the leave of the Court.

The person acquiring the interest of a party to legal proceedings may continue the same, but it does not by itself incapacitate the original party from continuing the proceedings and the former is both bound by and can enjoy the benefit of the steps taken by the latter. In this view of the matter, the appellant would, obviously, be bound by the compromise effected between Shrimati Sukhdev Kaur and Arjan Singh, unless he were to be permitted by the Court to reopen the settlement and show that the compromise was a fraud on his right.

In this connection, we asked the appellant about the consideration for the gift of the whole of her property by the lady in favour of the minor appellant, who is admittedly in no way related to her; we were informed that the assignee appellant or his father had maintained the lady and it was apparently in lieu of this that the entire property had been gifted by her in favour of the appellant.

11. As already noted, the provisions of Order 22, Rule 10, Code of Civil Procedure, confer a discretion on the Court in the matter of granting leave to an assignee to continue the proceedings; the Court below has in the exercise of its discretion refused leave to the appellant to be substituted in place of Shrimati Sukhdev Kaur after the compromise of the dispute and indeed when the duly executed compromise deed had alreay been presented to the Court.

12. After considering all the facts and circumstances of the case and also giving most anxious thoughts to the arguments advanced on behalf of the appellants, we have not been convinced that the discretion exercised by the Court below was either arbitrary or perverse or capricious or that it was exercised on fanciful or irrelevant grounds; nor has any sound and well-established judicial principle of law been shown to have been ignored or violated.

As has after been laid down--and it has not been controverted--it is not possible to lay down any hard and fast or rigid rules indicating particular groove for the exercise of the discretion by a Court, it being unfettered and undetermined from the very nature of the power conferred. Each case must need be decided on its own facts and circumstances; and except by way of illustration, no individual case can serve as a binding precedent for the decision of any other case.

The authorities to which our attention has been drawn, as I have already indicated, proceed on their own peculiar facts and circumstances, and they do not seem to bear any close resemblance to the circumstances of the case in hand, which are very peculiar; the Courts must in exercising the discretionary power consider the prima facie equities as well. We are not convinced that the impugned order is likely to occasion any real and substantial injustice or hardship to the appellant, with the result that we do not find any sufficient ground for interfering with the discretion exercised by the Court below.

13. For the reasons given above, this appeal fails and is, hereby, dismissed.

14. In so far as the other appeal (R. S. A. 1830 of 1959) is concerned, if the order refusing leave to the appellant under Order 22, Rule 10, is affirmed, then obviously the appellant Cannot appeal against the compromise decree which is clearly binding on him. This appeal would thus also fail and is hereby dismissed.

15. In the peculiar circumstances of the case,the parties are directed to bear their own costs inboth the appeals.


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