Decided on October 31,2002

MATADEEN Respondents


DORAISWAMY RAJU - (1.)THE above appeal has been filed against the judgment of a learned single judge of the High Court of Punjab and Haryana at Chandigarh dated 2.6.1982 in RSA No. 627 of 1992 dismissing the appeal as of no merit, thereby, affirming the judgment of the learned additional district judge, Narnol dated 5.2.1992 in Civil Appeal No. 58/1991, which, in-turn, has set aside the judgment and decree of the learned trial judge dated 15.2.1991, resulting in the dismissal of the suit filed by the appellant.
(2.)HEARD the learned counsel for the appellant and the learned senior counsel for the respondent.
The appellant filed civil suit no. 909 of 1987 for a declaration to the effect that he is the owner of 1/6th share belonging to Mukha, son of Oilbar, in addition to his own share on the basis of a civil court decree passed in civil suit no. 338 of 1973 decided on 11.9.1974. The learned trial judge decreed the suit on the basis of the judgment dated 11.9.1974 in civil suit no. 338 of 1973. Aggrieved, the respondent pursued the matter on appeal before the district court and as noticed earlier, the learned additional district judge, while setting aside the judgment and decree passed by the trial court, held the plaintiff/appellant herein was entitled to only 1/12th share. It was also pointed out by the learned first appeal judge that the mistake resulting in the erroneous claim was on account of the fallacious understanding about the share of Ram Chander by assuming it to be 1/6th, as against the real 1/12th. It would be useful to extract para 9 of the judgment of the learned district judge to make the factual position clear and beyond controversy:-

"9. I have given my due deliberations to the respective contentions of the learned counsel for the appellant and in my view there is a great force in his submissions. In order to understand relationship between the parties, the following pedigree table is drawn:- JUDGEMENT_139_JT10_2002Image1.jpg From the jamabandi for the 1995-96 BK (exhibit D 4) it is proved that Ram Sukh was owner of 1/ 12th in the suit land. Admittedly, he left behind three sons Dilbar, Manbhar and Laxman and after the death of Ram Sukh each of the sons had got 1/6th share. It is also not disputed that Dilbar left behind his two sons Ram Chander and Teka @ Mukha, therefore, each of the sons got 1/ 12th share after the death of Dilbar. The entries in the jamabandi for the year 1971-72 exhibit D 8 showing Mukha to be owner of 1/6th share are obviously incorrect. It has not been shown by any substantive evidence as to how Mukha came to own 1/6th share in the land. Presumption of truth is attached to the jamabandi but this presumption is rebuttable. The pedigree table exhibit D 7 is not disputed. To recapitulate Teka @ Mukha got only 1/12th share after the death of Dilbar and, therefore, he could suffer decree only to the extent of 1/6 share. The fallacy took place at the time of compromise effected on 16.12.1977 and at that time, the parties were under the apprehension that Teka @ Mukha was owner of 1/6th share which is in conflict with the record, therefore, the record has to be corrected and brought up to-date. The findings of the learned trial court are thus incorrect and are reversed so far as issue no. 1 is concerned. The mutation bearing no. 1130 dated 9.3.1982 has been rightly sanctioned."

It is against this judgment the appellant, who went before the High Court also unsuccessfully, is before us. On a careful consideration of the submissions on either side, it inevitably follows that the sons of Ramsukh, by name, Dilbar, Manbhar and Laxman, each became entitled to 1/6th in the share of Ram Sukh, who himself was said to be entitled to half share in the total property. Consequently, the son Dilbar, through whom both the parties herein traced their title, by name Ram Chander and Tekha @ Mukha, would each be entitled to 1/12th and not 1/6th, as assumed in the previous proceedings, wrongly. The compromise of civil suit no. 192, therefore, has to be understood in the light of the real and actual shares, in respect of which the parties proposed to assert a claim for themselves. The compromise decree was said to have been passed by recording the statement of the plaintiff/appellant in this suit, who was the defendant in the said suit earlier compromised. The said statement before the court, as recorded by the learned trial judge in that case is as follows:-

"Nihal S/o Ghisha S/o Manbhar, aged 45 years, profession: agriculture, village Karoli. On S. A. It is stated that it is admitted that the plaintiff is the adopted son and legal heir of Ram Chander S/o Dilbar. Such a decree may be passed in his favour. The plaintiff will have no connection with the inheritance of Mukha S/o Dilbar S/o Dilya."

(3.)WHEN the decree was passed on 16.12.1977, it was in the form of a declaration that not only the plaintiff is the adopted son of Ram Chander, the deceased son of Dilbar, but he is also entitled to "his estate only and that he has no interest in the estate of Mukha", the other son of Dilbar. As per the further observation made therein that the decree passed in civil suit no. 338 of 1974 dated 11.9.1974 shall remain in force, the appellant perhaps wants to claim 1/6th as against 1/12th to which only he is really entitled to. In substance, the effect of the judgment in suit no. 338 of 1974 was to declare that he was entitled to the share of Ram Chander and in the light of the dispute and resultant compromise in the subsequent suit, what was agreed to between the parties and accepted by the present appellant himself by a statement, was that, he would be entitled only to the share of Ram Chander. It is not permissible for him to legally claim anything in excess thereof.
For all the reasons stated above, there is absolutely no warrant to countenance the claim of the appellant in this appeal, except to clarify the position that notwithstanding the terms of the decree in suit no. 338 of 1974 and in the light of subsequent proceedings and the compromise, as rightly held by the learned district judge, the appellant as well as the respondent would be each entitled to 1/12th share and to make it further clear it may be stated that the same is out of the 1/6th share held by Dilbar, one of the three sons of Ram Sukh. The appeal, therefore, is hereby dismissed. No costs.

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