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Karam Singh Vs. Jagta and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 496 of 1970
Judge
Reported inAIR1982P& H51
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 25
AppellantKaram Singh
RespondentJagta and ors.
Cases ReferredCharan Singh v. Gehal Singh
Excerpt:
.....knowledge of passing of the said order. - what i find on the facts of the present case is that karam singh defendant produced the original will before the assistant collector 1st grade to claim ownership on the basis of this will and to have mutation of ownership entered in his favour and the assistant collector ultimately accepted the will to be a good document and sanctioned mutation in his favour. a will of the kind in dispute had a great bearing on the decision of the case one way or the other and merely because karam singh or his advocate was remiss in mentioning the will in the list of reliance or by inadvertence failed to produce it either with the written statement or at an early stage of the proceedings would not disentitle karam singh defendant from consideration of the..........golewal, tehsil garhshankar, district hoshiarpur. on his death, mutation was recorded in favour of karam singh defendant on the basis of a registered will dated 22nd aug. 1963 and he also entered into possession of the land left by dalip singh. jagta, son of dalip singh. filed the present suit for possession on the basis that the land held by dalip singh was ancestral that he was his sole heir being his son and that after the death of dalip singh. karam singh and his two brothers entered into forcible possession of the land in dispute after getting mutation sanctioned in favour of karam singh on the basis of some will which dalip singh had never executed nor was he entitled to do so under the custom. certain other pleas were also raised with which we are not concerned at this stage......
Judgment:

1. Dalip Singh was the last male-holder who owned about 57 Kanals and 3 Marlas of land in village Golewal, Tehsil Garhshankar, District Hoshiarpur. On his death, mutation was recorded in favour of Karam Singh defendant on the basis of a registered will dated 22nd Aug. 1963 and he also entered into possession of the land left by Dalip Singh. Jagta, son of Dalip Singh. filed the present suit for possession on the basis that the land held by Dalip Singh was ancestral that he was his sole heir being his son and that after the death of Dalip Singh. Karam Singh and his two brothers entered into forcible possession of the land in dispute after getting mutation sanctioned in favour of Karam Singh on the basis of some will which Dalip Singh had never executed nor was he entitled to do so under the custom. Certain other pleas were also raised with which we are not concerned at this stage. Karam Singh, defendant, contested the suit and pleaded that Dalip Singh had executed the will in his favour in a sound and disposing state of mind and the same was rightly given effect to by the revenue authorities while sanctioning the mutation. It was also pleaded that Shmt. Kartari was daughter of Dalip Singh who was later on impleaded as defendant No. 4 and in any event she would be entitled to half of the property; and therefore, suit of the plaintiffs could not be decreed for the entire land. The trial court found that the plaintiff was son of Dalip Singh and Shmt. Kartari defendant was daughter of Dalip Singh. With regard to the will set up by Karam Singh defendant it was held that the same was not proved. Hence a decree for half share was passed in favour of Jagta plaintiff. Karam Singh defendant took the matter in appeal. The only point urged before the lower appellate court was that the trial court was in error in not granting permission to Karam Singh defendant to prove the will after exhibiting the same. The lower appellate court repelled the contention on the sole ground that the order of the trial court declining permission to Karam Singh to prove and get the will exhibited was sought to be revised by Karam Singh by filing Civil Revision No. 10 of 1968 in this Court which was dismissed on 8th January, 1968: and therefore, in view of the High Court order he could not be allowed to re-agitate the matter in appeal. In the absence of a will, Karam Singh could have no claim to the property in dispute with the result the appeal was dismissed. Karam Singh defendant has come to this Court in second appeal.

2. The crucial point which will arise for consideration in this appeal would be whether the order of this Court passed in revision would either operate as res judicata or bar Karam Singh to reagitate the same matter either before the first appellate court or before this Court now in appeal. In order to go into this matter, it will be useful to notice as to what order was passed by this Court in the revision petition. A look at the order which is at page 39 of the file of the lower appellate court would show that the revision was dismissed in limine with one-word order. 'Dismissed'. It cannot be disputed that if this Court had found that there was no merit in the revision then such an order would have operated as res judicata between then parties as least up to the stage of this Court but if the revision was not dismissed by a speaking order, then the possibly cannot be excluded that this Court declined to entertain the revision either on the ground that the impugned order did not amount to a case decided and, therefore, no revision was competent or because no error of jurisdiction was shown. In either of these two eventualities, it would not be held that this Court found the order of the court below to be correct on merits. The effect in this situation would be that this Court was helpless in entertaining a revision and no more. Whether such an order would operate as res judicata or would come in the way of the aggrieved party to impugn the same before the lower appellate court or this Court in view of S. 105(1) of the Civil P.C. is the next point which falls for consideration. This matter is not res integra and has engaged the attention of this Court at least in three decisions out of which the first one is by a Division Bench, namely Roop Kishore v. Firm Raghbir Singh Baboo Ram, ILR (1970) 1 Punj and Har 533; Ishar v. Sudesh Kumar AIR 1973 Punj and Har 392 and Pohlu Ram v. Gram Panchayat, Dharamgarh 1980 Rev LR 132. The facts of the aforesaid cases are identical and it was held that dismissal of a revision which one-word order, 'Dismissed', would not debar the aggrieved party from re-agitating the matter in appeal from the final decree. Hence it is held that if any interlocutory order was passed by the trial court which was subject-matter of revision in this Court and the revision was dismissed with one-word order, 'Dismissed', that would not operate as res judicata nor debar the aggrieved party to re-agitate the matter in the first or a second appeal.

3. Shri Ashok Bhan appearing for the plaintiff-respondent, relied upon Reserve Bank of India v. Ramkrishna Govind Morey, (1976) 1 SCC 803 : (AIR 1976 SC 830) and a Division Bench judgment of this Court in Amarjit Singh v. Financial Commissioner, Taxation, Punjab, Chandigarh, AIR 1978 Punj and Har 329. In Reserve Bank of India v. Ramkrishna Govind Morey (supra), the point whether dismissal of a revision against an interlocutory order with one word, 'Dismissed', was not the subject-matter of consideration. Even a summary dismissal, as already stated above, can amount to res judicata or debar the aggrieved party to re-agitate the matter provided it can be found from the summary order that it was on merits. Hence that is distinguishable. As regards Amarjit Singh v. Financial Commissioner. Taxation, Punjab, Chandigarh (supra), the question was entirely different. There an order of Financial Commissioner was challenged by filing a writ petition which was dismissed in limine and thereafter the aggrieved party filed a review application before the Financial Commissioner which was allowed and against the review order of the Financial Commissioner, the writ was allowed by this Court after recording a finding that the earlier order of the Financial Commissioner merged with the order of this Court in the writ petition and, therefore, the Financial Commissioner could not have reviewed the matter. A reading of this judgment also does not show that the earlier writ petition was dismissed with one-word order. 'Dismissed'. There is a latest judgment of this Court delivered by a Full Bench of five judges in Teja Singh v. Union Territory of Chandigarh (1981) 1 Serv LR 274, which considered the effect of an order passed in writ petition with one-word order, 'Dismissed', wherein it was held that such an order would not operate as res judicata in any other proceedings but would only debar the party concerned from filing a fresh writ petition. The Full Bench had placed reliance on a decision of the Supreme Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, AIR 1978 SC 1283, besides other decisions. It was then urged by Mr. Ashok Bhan that the Division Bench had applied the rule of merger of judgment of the Financial Commissioner with that of this court. The rule of merger would apply only if a judgment is delivered by a superior court on merits. Hence this rule will also not be applicable to the facts of the present case. Accordingly, the two decisions relied upon by Mr. Ashok Bhan are either distinguishable or in any event would not stand in the way of the appellant to urge that the order of his Court dismissing the revision petition with one-word. 'Dismissed', would not stand in his way to re-agitate the matter in an appeal from the final decree.

4. This brings me to the consideration of the merits of the present case. Karam Singh defendant produced Nathu Ram, scribe of the will as D.W. 1 who appeared on 14th Dec. 1967. He stated that he had scribed the will dated 22nd Aug., 1963, on behalf of Dalip Singh. Then the original will was sought to be exhibited on which objection was raised by the plaintiff and the trial court passed the following order:

'Tendered in evidence at this stage. Not admitted as it was produced only on last hearing and is not a document relied upon.'

However, the witness was allowed to be examined further. The scribe made a statement about the execution of the will and other attending circumstances. Some of the questions put were objected to by the plaintiff's side and at the close of the examination-in-chief, the will was marked 'A'. It was this order of the trial court which was impugned by Karam Singh defendant in this Court by filing Civil Revision No. 10/1968 which was dismissed in limine with one-word order. 'Dismissed', on 8th Jan., 1968. The two reasons given for declining to admit the will and proof thereof were that it was tendered in evidence at a late stage and was not a document relied upon in the list of reliance. As a matter of law, it cannot be ruled that in every case where a document is tendered at a late stage or is not mentioned in the list of reliance it would always be excluded from consideration or from being exhibited and proved. This would depend on the facts and circumstances of each case and the nature of document sought to be produced. What I find on the facts of the present case is that Karam Singh defendant produced the original will before the Assistant Collector 1st Grade to claim ownership on the basis of this will and to have mutation of ownership entered in his favour and the Assistant Collector ultimately accepted the will to be a good document and sanctioned mutation in his favour. A look at the original will further show that the will was returned by the Assistant Collector 1st Grade on 18th April. 1967 and was produced before the civil court in the present litigation on the hearing prior to 14th December, 1967 and before Karam Singh defendant started leading evidence. Moreover, the will was duly presented for registration on 22nd Aug., 1963, when it was scribed and was actually entered in the register of Sub-Registrar on 21st January, 1964. It is not a document which could be manufactured by Karam Singh defendant a little before it was sought to be produced. A will of the kind in dispute had a great bearing on the decision of the case one way or the other and merely because Karam Singh or his advocate was remiss in mentioning the will in the list of reliance or by inadvertence failed to produce it either with the written statement or at an early stage of the proceedings would not disentitle Karam Singh defendant from consideration of the will on merits. The procedural law is a handmade of justice: and even if there was infraction of the same, if no valuable right had accrued to the opposite party it was a fit case for granting permission to have the will exhibited and proved. The opposite party could well be compensated by payment of costs. In the present case. Karam Singh defendant does not deserve to be burdened with costs since the will was produced on a hearing before he started leading evidence and about which there was a mention in the plaint and written statement. Therefore, the opposite party very well knew about the will. Accordingly, I am of the opinion that the trial court committed an error in declining the production of the original will on record or to have the same proved in accordance with law. Accordingly, I set aside the order of trial court dated 14th December, 1967 quoted above, as being illegal and erroneous and while doing so grant permission to Karam Singh defendant to have the will exhibited and proved in accordance with law. The original will which has already been produced on the record and was marked 'A' by the court below is exhibited as D.W. 1/A.

5. Since the will has been exhibited today. Karam Singh defendant may like to lead further evidence to prove the same. Shri Ashok Bhan appearing for the plaintiff-respondent also claims an opportunity to lead evidence in rebuttal without agreeing to the order exhibiting the document and without prejudice to the rights of his client to challenge this order, I think the claim is reasonable.

6. The suit was filed in June, 1966 and the litigation has been pending for over fifteen years already. Under the circumstances I consider it desirable to remit the case to the trial Court under O. 41 R. 25, Civil Procedure Code so that the trial Court may record evidence with regard to the will as may be sought to be led by Karam Singh in the first instance and rebutted by the plaintiff-respondent, and after doing so he would hear the arguments of both the sides and decide issue No. 2, that is, 'whether Dalip Singh deceased executed a valid will in favour of defendant No. 1'. After he decides this issue on the basis of evidence already led and to be led, he would send the record of the case alone with his report to the learned District Judge who may hear the arguments of the parties on this issue and shall prepare his report and send the entire record along with his report to this Court when the matter would be decided by this Court finally. The District Judge may do so himself or make over the case to an Additional District Judge for the purpose.

7. Findings on issues Nos. 1 and 5 have not been disputed before me and the decision on those issues is upheld. As regards issues Nos. 3 and 4, the same have become redundant because after the amendment of the Act No. 12 of 1972 and the Division Bench decision in Charan Singh v. Gehal Singh, (1974) 76 Pun LR 125, the validity of a will under custom on the ground that the ancestral property cannot be willed away can no longer be challenged. Therefore, only issue No. 2 survives for decision.

8. For the reasons recorded above the case is remitted to the trial Court along with record of the case for complying with this Order. The parties through their counsel are directed to appear before the trial Court, that is, Sub Judge Ist Class, Garhshankar on 14th of Sept., 1981. The trial Court shall submit its report to the learned District Judge within a period of four months from the date of the appearance of the parties before him and shall give ten days' date for appearance of the parties before the learned District Judge.

The learned District Judge or the Additional District Judge, as the case may be, shall submit his report along with the records of the case to this Court within six weeks of the appearance of the parties. A copy of this judgment along with the record of the case be sent to the trial Court forthwith.

9. Order accordingly.


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