Jaswant Singh vs Gurdev Singh & Ors

Jaswant Singh .... Appellant (s)

Versus

Gurdev Singh & Ors. .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) These appeals are filed against the common final

judgment and order dated 24.09.2007 passed by the High

Court of Punjab & Haryana at Chandigarh in Regular Second

Appeal (RSA) Nos. 4473 and 4776 of 2004 whereby the High

Court dismissed both the appeals filed by the appellant herein.

3) Brief facts:

a) Jaswant Singh-appellant herein filed a Civil Suit being

No. 3 of 1997 in the court of Civil Judge, (Jr. Division)

Hoshiarpur for declaration to the effect that he was the owner

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and in possession of land measuring 101 kanals 16 marlas

situated in village Simbli, H.B. No. 272, Tehsil and District

Hoshiarpur and for correction of the revenue entries in

Column No. 4 of Jamabandi Register wherein the respondents

herein had been wrongly shown to be the owners. It was

claimed in that suit that one Shri Hazara Singh, s/o Shri

Nihal Singh was the owner of the properties in village Simbli,

Bajraur and Chabbewal and after his death on 06.12.1972, by

virtue of a Will dated 05.12.1971, he transferred his properties

in favour of the appellant herein and the names of the

respondents mentioned in the Jamabandi Register were

wrong, illegal and liable to be corrected.

b) Even as early as on 05.06.1972, a civil suit was filed by

the appellant herein in the court of sub-Judge, First Class,

Hoshiarpur seeking permanent injunction against one Amar

Kaur and others restraining them from interfering in the land

situated in Simbli. During the pendency of the suit, the

parties entered into a compromise dated 27.11.1972 and on

that basis the suit was decreed on 08.12.1972 and Mutation

No. 1536 was sanctioned in favour of the appellant herein with

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respect to 12-1/2 acres of land and the same was delivered to

him which he had been in possession since 16.02.1973.

Respondent No. 1 herein and others considered Jaswant Singh

to be the owner of 8 acres and regarding the remaining 4-1/2

acres of land, he was considered to be in mere permissive

possession as it was given to him in lieu of his father's share

in village Simbli, Chabbewal and Bajrawar for the purposes of

cultivation only. The appellant took various steps to change

the names in the revenue entries but during this whole period,

the revenue entries remained unchanged in the name of

Hazara Singh and hence the appellant herein filed civil suit for

correction of those entries in Jamabandi.

c) Gurdev Singh-Respondent No. 1 herein, s/o Shri Karnail

Singh filed a civil suit being RBT CS No. 145 of 1998 in the

same Court and the matter was clubbed with Civil Suit No. 3

of 1997 alleging therein that he was co-sharer in 1/4th share of

land of Hazara Singh in village Simbli, = share in village

Chabbewal and 1/4th share in village Bajraur as Hazara Singh

was brother of their grand father. Vide order dated

20.04.2001, the civil Judge decreed the suit filed by Jaswant

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Singh-appellant herein and dismissed the suit filed by Gurdev

Singh-Respondent No. 1 herein.

d) Aggrieved by the order dated 20.04.2001, Respondent No.

1 herein filed RBT Civil Appeal Nos. 68 & 75 of

07.06.2001/04.06.2004 before the court of Additional District

Judge (Ad-hoc), Fast Track Court-II, Hoshiarpur. Vide order

dated 28.09.2004, the Additional District Judge set aside the

judgment and order dated 20.04.2001 passed by the Civil

Judge (Jr. Division), Hoshiarpur and allowed the appeal filed

against Civil Suit No. 3 of 1997 to the extent that Jaswant

Singh-appellant herein is the owner of 8 acres of land and in

possession of 4-1/2 acres of land at village Simbli, in view of

compromise dated 27.11.1972. Feeling aggrieved, Jaswant

Singh-appellant herein filed RSA Nos. 4473 and 4776 of 2004

before the High Court of Punjab & Haryana at Chandigarh

whereby vide common judgment and order dated 24.09.2007,

the High Court dismissed both the appeals. The said order is

under challenge before this Court in these appeals by way of

special leave.

4 4) Heard Mr. A.V. Palli, learned counsel for the appellant

and Shri Chinmay Khaladkar, learned counsel for the

respondents.

5) As stated earlier, the appellant filed a suit for permanent

injunction on 05.06.1972 alleging himself to be in possession

as a co-sharer of land situated in village Simbli. In the said

suit, the parties entered into a compromise and on the basis of

the said compromise (Ex.P1), a decree was passed on

08.12.1972. The interpretation of the said compromise is in

dispute in the present proceedings. As per the appellant, he

became the owner and in possession of 12 = acres of land

situated in village Simbli whereas as per the defendants, the

plaintiff was admitted to be the owner of 8 acres of land

situated in village Simbli but was given possession of another

land measuring 4= acres of land in respect of his share

situated in village Chhabewal and Bajrawar. The compromise

decree was produced as Ex. P1 and the compromise deed was

produced as Ex.D3.

6) In order to substantiate his claim, the appellant-plaintiff

examined one Ajit Kumar Walia as PW-1 who deposed before

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the Court that the file relating to the decree is not available

since the record was burnt due to fire which broke out in the

record room on 16.06.1998. Ashwani Kumar, PW-3, was also

examined who in turn, deposed that Rupt No. 242 dated

16.02.1973 is not available in his record despite best efforts

made by him.

7) On the other hand, from the side of the respondent-

Defendant, one Harbhajan Singh was examined as DW-1, who

had endorsed the fact that a compromise had taken place

between the parties and a decree was passed on the basis of

that compromise. He along with Dhan Kaur, Pritam Kaur,

Arjan Singh, Bakshish Singh and Karam Singh were the

witnesses to the compromise. He asserted that as per the

compromise, the plaintiff-Jaswant Singh was given only 8

acres of land in village Simbli. Ashwani Kumar, Patwari who

was examined as DW-3, had brought Mutation No. 1536 of

Hazara Singh, certified copy of which is produced as Ex. DW

3/A and the entry of mutation is at S.No. 22.

8) It is further seen that based on the terms arrived at in

the compromise and the decree dated 08.11.1972, the

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mutation of the land situated in village Simbli was sanctioned.

Even though the appellant-Jaswant Singh raised an objection

as to the compromise dated 27.11.1972, (Ex.D3), admittedly,

the same has not been challenged by him either in his plaint

or in the suit filed by him or in the written statement filed in

the suit by the defendant-Gurdev Singh. It is relevant to point

out that in paragraph 3 of the plaint, the appellant-Jaswant

Singh categorically mentioned that the parties have

compromised and the decree dated 08.12.1972 was passed.

In the written statement filed by the defendant-Gurdev Singh

and others, it was categorically pleaded that the decree dated

08.12.1972 was passed solely on the basis of the compromise

entered into between the parties. The details of the

compromise were also given in the written statement filed on

21.01.1999 by Gurdev Singh. Though in the replication to the

amended written statement filed by Jaswant Singh, the terms

and conditions of the compromise were not admitted but were

also not denied and even it was pleaded that these terms and

conditions of the compromise are a matter of record. The

compromise dated 27.11.1972 was not challenged by Jaswant

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Singh rather it can be said that he also relied upon it because

the decree upon which he claims ownership, has been passed

only on the basis of this compromise dated 27.11.1992

(Ex. D3).

9) Now the other question which remains to be decided is

whether the compromise Ex. D3 is admissible in evidence or

not? The compromise dated 27.11.1972 has become the basis

of the decree dated 08.12.1972 passed by the Sub-Judge,

Hoshiarpur. The perusal of Ex. D4 i.e., judgment and decree

were passed as per the terms and conditions of compromise

placed on file. As rightly observed by the courts below, the

compromise has merged into a decree and has become part

and parcel of it. To put it clear, the compromise had become a

part of the decree which was passed by the court of Sub-Judge

Ist Class, Hoshiarpur. Hence, it is a public document in terms

of Section 74 of the Indian Evidence Act, 1872 (in short `the

Act') and certified copy of the public document prepared under

Section 76 of the Act is admissible in evidence under Section

77 of the said Act. A certified copy of a public document is

admissible in evidence without being proved by calling

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witness. Inasmuch as the decree was passed and drafted in

the light of the compromise entered into between the parties,

viz., the plaintiff and the defendants, the certified copy of such

document which was produced before the Court, there is

presumption as to the genuineness of such certified copy

under Section 78 of the Act. We have already noted that the

appellant-Jaswant Singh has not challenged the genuineness

of certified copy in any manner. Although the record of the

Court has been proved to be burnt in a fire in Judicial Record

Room, Hoshiarpur on 16.06.1998, but the certified copy of the

compromise (Ex.D3), which is the part of the decree was

obtained from the record room on 24.08.1988 and the Decree

Ex.D4 was got issued on 12.09.1984. In those circumstances,

there is no reason to doubt the authenticity of compromise

(Ex.D3). Even otherwise, as rightly observed by the courts

below, the appellant-Jaswant Singh had not filed any other

substitute of the document Ex.D3, on the basis of which the

decree (Ex.D4) had been said to be passed. As stated earlier,

in view of the fact that the decree dated 08.12.1972 clearly

says that the suit is partly decreed in favour of the plaintiff as

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per the terms of the compromise placed on file, there can be

no other way to interpret the decree except in terms and

conditions of the compromise (Ex.D3).

10) Thus, in view of the above discussion, it is to be held that

the decree dated 08.12.1972 is to be read and interpreted in

terms of the compromise (Ex.D3) dated 27.11.1972. We are

satisfied that the judgment and decree passed by the lower

appellate Court as affirmed by the High Court is based upon

proper appreciation of the terms of compromise (Ex.D3) and

do not find any illegality or irregularity for interference.

11) Consequently, the appeals fail and are accordingly

dismissed. There shall be no order as to costs.

...................

..............................J.

(P. SATHASIVAM)

...............................................J.

(JASTI CHELAMESWAR)

NEW DELHI;

OCTOBER 21, 2011.

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