http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: NIRMALJIT SINGH & ORS.

       Vs.

RESPONDENT: HARNAM SINGH (DEAD) BY LRS.& ORS.

DATE OF JUDGMENT:       30/01/1996

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) BHARUCHA S.P. (J)

CITATION:  JT 1996 (1)   622        1996 SCALE  (1)584

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The property  of one  Dewan Singh, a common ancestor of the appellants and the respondents, is the subject matter of dispute in  this  appeal.  A  genealogy  table  showing  the relationship between  the appellants  and the respondents is given below :                           Dewan Singh                                 |                                 | ----------------------------------------------      |             |          |           |      |             |          |           | Rattan Singh Kapoor Singh Boor Singh Gurdit Singh      |             |          |           |      |             |          |           | Dalip Singh    Lakhbir Singh  |     ----------------- (Defendant No.5)              |     |               |                               |     |               |                               | Harbans Singh   Balwant Singh                               |     |      (Defendant No.1)                               |     |               |                               |     |               |                               | Shivjit Singh   Jasjit Singh                               | (Defendant No.2) (Defendant No.3)                               | | ----------------------------------------------- |                |            |               | |                |            |               | Karam Singh Harnam Singh Balbir Singh  Amrik Singh (Defendant  (Plaintiff)       |        (Plaintiff) NO.4)                         |                               |

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

                    ---------------------                      |                   |                      |                   |                  Sarasti Devi          Janak                  (widow)            (daughter)                  (Plaintiff)        (Plaintiff)      Dewan Singh left behind four sons, Rattan Singh, Kapoor Singh, Boor Singh and Gurdit Singh. In 1926, one of the sons of  Dewan  singh,  namely,  Boor  Singh  filed  a  suit  for partition in respect of the houses and mansion left by Dewan Singh including  a house  known as ’Haveli Dewan Singh Wali’ at Phagwara,  in the  Court of  the Magistrate  First Class, Tehsil  Phagwara,  Kapurthala  State.  His  brothers  Gurdit Singh, Kapoor  Singh and  Dalip Singh  s/o of  his  deceased brother Rattan  Singh were all parties to this suit. In this suit, a  reference was made to arbitration. The reference to arbitration is  singed by  Boor Singh’s branch consisting of his four  sons, Karam  Singh, Harnam Singh, Balbir Singh and Amrik Singh.  Amrik Singh  being a  minor, Harnam  Singh has signed as the guardian of Amrik Singh. Boor Singh presumably was not  alive by this time. The reference to arbitration is also signed  by Boor  Singh’s brother  Kapoor  Singh,  Dalip Singh s/o  Boor Singh’s  brother Rattan  Singh  and  Balwant Singh s/o  Boor Singh’s  brother Gurdit  Singh, Gurdit Singh also presumably  having passed  away. Gurdit  Singh had also left  behind  another  son  Harbans  Singh.  Harbans  Singh, however, did  not contest  the suit  and claimed no share in the properly  in question. It is submitted by the appellants that Harbans  Singh was  given in  adoption to  his maternal uncle and  was, therefore,  not interested  in any  property coming to  the share  of his  natural father  Gurdit  Singh. Harbans  Singh  was  not  a  party  to  the  reference.  The Arbitrator proceeded  with the  reference and gave his award which was  filed in  court. A  decree in terms of this award was passed  by the  Magistrate First Class, Tehsil Phagwara, Kapurthala State, on 19 Paus 1987, that is to say, some time in the year 1930.      On 24th of October, 1967 the present suit for partition of Dewan  Singh’s property,  being a  house known as ’Haveli Dewan Singh  Wali’ at Phagwara was filed by Harnam Singh and Amrik Singh,  sons of  Boor Singh  along with  the widow and daughter of Balbir Singh (another son of Boor Singh) against Karam Singh another son of Boor Singh and the sons of Gurdit Singh, Kapoor  Singh and  Rattan  Singh.  It  was  contended before the  trial court  by the defendants that the claim in this suit  was barred  by res judicata in view of the decree passed in the partition suit filed in 1926. The trial court, however,  decreed  the  suit.  The  first  appeal  from  the judgment and  decree of  the trial  court was dismissed. The High Court  dismissed the  second appeal.  Hence the present appeal has  been filed  before us  by the  branch of Balwant Singh s/o  Gurdit Singh  against the  branches of  the other three brothers.      It is submitted by the appellants that in the partition suit of  1926, the same property which is the subject matter of the present suit was also the subject matter of partition in that  suit. The decree which has been passed in that suit is being  on the  respondents since  each of the branches of the four sons of Dewan Singh was a party to that suit and to the reference to arbitration made therein. The decree passed in that  suit is  binding on  all the four branches of Dewan Singh. The  original plaintiffs  who are  respondents before us, however, contend that the earlier decree in terms of the award must  be ignored  and cannot  operate as  res judicate because Harbans  Singh, the  second son of Gurdit Singh, was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

not a  party to  the reference. The reference to arbitration is, therefore, bad in law.      There is  no merit in this contention. If at all anyone could have  challenged the  award,  it  was  Harbans  Singh. harbans Singh  has not  challenged the  arbitration award or the decree  passed in  terms thereof.  The persons  who  are challenging this award and the decree in terms of this award are the  two sons  of Boor  Singh and  the heirs  and  legal representatives of  Balbir Singh, another son of Boor Singh. These three sons of Boor Singh were parties to the reference to arbitration  and were  also defendants  to the  suit. The decree which  has been  passed in  terms  of  the  award  is binding on  them. Neither  Harbans Singh nor his son Shivjit Singh, who  is defendant  No. 2  in the  present  suit,  has challenged the award or the decree. Hence, the decree passed in the  earlier suit cannot be disowned by the respondents - original plaintiffs on the ground that Harbans Singh was not a party to the arbitration proceedings.      It is next contended by the original plaintiffs who are respondents here  that the decree passed in the suit of 1926 is a  nullity and  can be  ignored because  no notice of the filing of  the award  in court  was served upon the parties. The decree was passed as far back as in 1930. No proceedings have been  taken out  by the original plaintiffs at any time to have  this decree  set aside  or to have it declared as a nullity. So  long as  the decree stands and has not been set aside, the decree is binding on the parties to it and cannot be ignored.  In  respect  of  the  previous  suit,  what  is produced before  us is a copy of the last order sheet of the Court or  Lala Shiv  Ram Das Saheb, Magistrate, First Class, Tehsil  Phagwara,   Kapurthala  State.  It  notes  that  the arbitrator pronounced  his award  in  the  presence  of  the parties and  it should  have been  got declared as a Rule of the  Court.   Inspite  of  service  the  plaintiff  has  not appeared. The  order then  proceeds to make the award a Rule of the  Court. It  further states  :  "The  parties  may  be informed in  writing accordingly  as required by law and the file  may   be  consigned  to  the  record  room."  Clearly, therefore, the  record shows  that at  least immediately  on passing of the decree a notice was served on all the parties in writing  by the  Court informing  them of the award being made an  order of  the court.  If any of the parties had any grievance in  respect of  the award  or the decree passed in terms of it, they could have applied to the court for having the decree  set aside. Despite this notice in writing nobody challenged either  the award  or the decree which was passed in terms of that award. The decree is, therefore, binding on the parties  and it  cannot  be  ignored  or  considered  as invalid.      Moreover, the  contention that  no notice of the filing of the award was served on the parties was not raised either in the  plaint or before the trial court or before the first appellate court.  This contention  was raised  for the first time in second appeal before the High Court. In our view the High Court was not right in coming to the conclusion that in the absence  of the notice of the filing of the award (which it presumed)  the decree  in  terms  of  the  award  can  be considered as  non est  and can  be ignored so that it would not operate as res judicata.      In the  premises, the  suit is  clearly barred  by  the principles  of  res  judicata.  The  appeal  is,  therefore, allowed. The  judgment and  decree of  the High Court is set aside and the suit or the plaintiff is dismissed with costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4