RSA No.3597 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3597 of 2010 (O & M) Date of Decision: 09.09.2010. Jasvir Singh alias Jaskaran Singh and another .……Appellants Versus Sohan Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Rajnish K. Jindal, Advocate with Mr. Ashok Khichi, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.10586-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 43 days in filing the appeal is condoned. Main Appeal. Plaintiffs-Jasvir Singh alias Jaskaran Singh and Jugraj Singh alias Gurmej Singh have filed the instant second appeal, having lost in both the Courts below. Suit was filed by appellants against respondents as well as against Gurbachan Singh since deceased. It is alleged that Gurbachan Singh (defendant No.1) has transferred the suit land measuring 84 kanals 1 marla to defendant Nos.2 to 4 by way of registered transfer deed dated 27.02.2004. The said transfer is null and void because the suit property was ancestral in the hands of RSA No.3597 of 2010 (O & M) -2- defendant No.1 qua plaintiffs and defendant Nos.2 to 4 (respondent Nos.1 to 3) being his sons. During the pendency of the instant suit, defendant No.1 also suffered consent decree dated 28.08.2004 in favour of defendant Nos.2 to 4 regarding the suit land. The said decree has also been challenged. Defendant Nos.5 and 6 are daughters of defendant No.1 whereas defendant No.7 is wife of defendant No.1. Defendants contested the suit and denied the plaint allegations. It was denied that suit land was ancestral or Joint Hindu Family Property. It was pleaded that defendant No.1 was absolute owner in possession of the suit property and the impugned transfer deed is legal and valid and defendant Nos.2 to 4 have become owners in possession of the suit land. Decree dated 28.08.2004 was suffered for making some correction in the transfer deed. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Malout vide judgment and decree dated 02.05.2009 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs stands dismissed by learned District Judge, Muktsar vide judgment and decree dated 09.04.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Documentary evidence led by the plaintiffs themselves reveals that defendant No.1 inherited only 24 kanals 3 marlas land from his father whereas defendant No.1 at one stage was owner in RSA No.3597 of 2010 (O & M) -3- possession of 136 kanals 7 marlas land. He sold a part of the land and was then left with ownership of 130 kanals 6 marlas land. He had acquired the remaining land out of it from his sisters and cousin brother. Consequently, the said land was not ancestral or Joint Hindu Family Property in the hands of defendant No.1. Only 24 kanals 3 marlas land was ancestral in the hands of defendant No.1 out of 136 kanals 7 marlas land. The impugned transfer is of 84 kanals 1 marla land only. Consequently, the said transfer is out of non-ancestral property by defendant No.1 in favour of defendant Nos.2 to 4. The plaintiffs have, therefore, been rightly non-suited by the Courts below. There is concurrent finding by the Courts below after appreciation of evidence. The said finding is supported by the documentary evidence led by the plaintiffs themselves. Cogent reasons have been assigned by the Courts below for arriving at the said finding. Learned counsel for the appellants contended that defendant No.1 should have been injuncted from alienating 24 kanals 3 marlas land which was proved to be ancestral or joint Hindu Family Property. This contention is also devoid of substance. Firstly, a coparcener cannot seek injunction against Karta regarding alienation of coparcenary property and the only remedy for the coparcener is to challenge the alienation after it is made if the alienation is against the law. There is no absolute bar on the power of Karta to alienate coparcenary or Joint Hindu Family Property and, therefore, injunction against alienation cannot be granted and only if the alienation is hit by law, the same can be challenged by the coparcener after the RSA No.3597 of 2010 (O & M) -4- alienation has actually been made. Secondly, in the instant case, defendant No.1-Gurbachan Singh has since died and, therefore, the question of granting any injunction against him as claimed by the plaintiffs-appellants does not arise. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. 09.09.2010. ( L. N. MITTAL ) A. Kaundal JUDGE