- (1.) RAMESHWAR SINGH MALIK, J Two connected appeals between the same parties and directed against the same impugned judgment passed by the learned lower appellate court are proposed to be decided together. Particulars of these two appeals are RSA No.3253 of 1985 (Karnail Singh Vs. Lal Singh) and RSA No.589 of 1986 (Lal Singh Vs. Karnail Singh). However, for the facility of reference, facts are being culled out from RSA No.3253 of 1985.
(2.) JEON Singh had two sons namely Lal Singh (plaintiff) and Bachan Singh (defendant No.2). Both these brothers jointly purchased land measuring 133 kanals 7 marlas from Smt. Prem Kaur. Lal Singh and Bachan Singh sons of Jeon Singh were having one half share each in the joint land measuring 133 kanals 7 marlas. Bachan Singh -defendant No.2 suffered a consent decree in favour of Karnail Singh -defendant No.1 -appellant vide Ex.D -1 dated 12.01.1982 to the extent of 56 kanals 8 marlas from his half share measuring 66 kanals 4 marlas out of above said 133 kanals 7 marlas. This decree came to be challenged by plaintiff -Lal Singh brother of defendant No.2 -Bachan Singh, by way of suit for possession and permanent injunction alleging that the suit land was of Joint Hindu Family. Defendant No.2 had no right to suffer the consent decree qua the land which was ancestral property and also because he was not related to Karnail Singh -defendant No.1. It was also alleged that defendant No.1 grabbed the suit land illegally by playing fraud and undue influence over defendant No.2. The consent decree was result of fraud and the same was illegal, null and void and not binding on the rights of the plaintiff. Upon notice, defendants appeared and filed their written statement contesting the suit controverting the allegations levelled by the plaintiff. It was pleaded that neither the suit land was property of Joint Hindu Family nor it was ancestral property. It was the self - acquired property of defendant No.2 -Bachan Singh. Since defendant No.2 was absolute owner of the suit land, he had every right to suffer a consent decree in favour of defendant No.1. It was also asserted that since defendant No.2 had disposed of his self -acquired property less than his share in the joint khewat, the decree was legal and binding on the rights of the parties. On completion of pleadings of the parties, following issues were framed by the Learned Trial Court: - 1. Whether the plaintiff and defendant No.2 are members of joint Hindu family and the property in dispute is the co -parcenary property of the Hindu Joint family? OPP. 2. Whether the decree in question dated 12.01.1982 was obtained illegally by fraud, undue influence as alleged? If so, its effect? OPP. 3. Whether the plaintiff has no locus standi to bring this suit? OPP 4. Relief To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, the learned trial court came to the conclusion that the suit property was self -acquired property of Bachan Singh -defendant No.2 and he had every right to suffer the decree. The decree was not the result of fraud and the same was binding between the parties. It was also held that the plaintiff had no locus standi to file the suit. The suit was dismissed. Plaintiff -Lal Singh filed his first appeal which was allowed by the lower appellate court decreeing the suit to the effect that plaintiff was co -owner in joint possession to the extent of half share in the disputed land measuring 56 kanals 8 marlas. The decree dated 12.01.1982 was held ineffective qua his rights of co -ownership in the suit land. Karnail Singh -defendant was restrained from transferring the disputed land in any manner. Feeling aggrieved against the impugned judgment and decree dated 21.10.1985, Karnail Singh -defendant No.1 has filed the instant regular second appeal against the judgment of reversal. Learned counsel for the appellant -defendant Karnail Singh submits that the plaintiff -respondent had no locus standi to file the present suit because defendant No.2 -Bachan Singh was having his self -acquired property to the extent of 66 kanals 4 marlas being half share of 133 kanals 7 marlas. Bachan Singh had every right to suffer the consent decree in favour of appellant -defendant No.1 Karnail Singh. Bachan Singh was the only person competent to allege any fraud or mischief about passing of the consent decree dated 12.01.1982 Ex.D -1. However, in the present case Bachan Singh -defendant No.2 filed his written statement on 22.09.1982 which was joint with Karnail Singh -defendant No.1. Bachan Singh also put his thumb impression on the power of attorney. This fact has gone unrebutted. He next contended that the consent decree was as good as a contested decree and would be binding on the parties to the suit until and unless the consent decree is challenged by the defendant on the basis of fraud and the same is proved as such by leading cogent evidence.
(3.) RELYING upon Full Bench judgment in Bhartu Vs. Ram Sarup 1981, PLJ 204, learned counsel for the appellant submits that Bachan Singh being co -sharer to the extent of one half share in the joint property, had every right to dispose it of as the same was a self - acquired property. Finally, he prays for setting aside the impugned judgment passed by learned Additional District Judge, Bathinda, by allowing the present appeal. On the other hand, learned counsel for the plaintiff - respondent Lal Singh vehemently contended that the consent decree dated 12.01.1982 Ex.D -1 suffered by Bachan Singh in favour of Karnail Singh -appellant would not adversely affect his right. Suit land being absolute ownership of Bachan Singh to the extent of 66 kanals 4 marlas, out of the total joint khewat of 133 kanals 7 marlas being the self -acquired property, he could not deny the entitlement of Bachan Singh in this regard. He primarily restrained himself and rightly so to the extent that the impugned decree dated 12.01.1982 Ex.D -1, even though qua specific khasra numbers, should not prejudice the right of the plaintiff in any manner, including his right to get the joint khewat partitioned. He prays for dismissal of the appeal. Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that since the impugned judgment and decree passed by learned lower appellate court are contrary to the law laid down by the Full Bench judgment of this Court in Bhartu's case (supra), the same cannot be sustained. The instant appeal filed by defendant No.1 -Karnail Singh deserves to be allowed whereas the second appeal filed by plaintiff -Lal Singh is liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.;