RSA No.1779 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1779 of 1984 Date of decision 04.08.2010. Ranjit Singh ...... Appellant. versus Harpal Singh and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. P.N.Aggarwal,Advocate for the appellant. Mr. Hrminder Singh, Advocate for respondent No.1. Mr. S.C.Khungar, Advocate for respondent Nos.4 to 8. K.C.PURI, J. This is a regular second appeal directed by plaintiff-appellant against the judgment dated 8.12.1983 passed by Shri J.C.Aggarwal, Additional District Judge, Ferozepur vide which the appeal preferred by the plaintiff-appellant against the judgment dated 19.8.1982 passed by Shri Harjit Singh, Additional Senior Sub Judge, Fazilka, was dismissed. The case of the plaintiff/appellant is that the sale effected by RSA No.1779 of 1984 2 defendant No.1 regarding the land measuring 27 kanals 4 marlas, details of which are given in the plaint are illegal, void and liable to be set aside and not binding on the plaintiff on the ground that the plaintiff is the son from the wedlock of Harpal Singh and Pritam Kaur. Nirmal Singh defendant No.3 is minor and resides with his father Harpal Singh, who has no adverse interest, so he is sued through Harpal Singh. Plaintiff and defendants No. 1 to 3 are constituting Hindu Undivided Family and the plaintiff has right since his birth in the property. Defendant No.1 is the karta of the said family. Plaintiff is the son of defendant No.1 from his first wife Pritam Kaur. Harpal Singh has strained relations with Pritam Kaur. During the life time of Pritam Kaur, Harpal Singh was also married to Mohinder Kaur. Gurbax Singh maternal grand father of the plaintiff filed complaint against Harpal Singh under Section 494 IPC and Pritam Kaur filed an application under Section 488 of the IPC. Then a compromise was effected between the parties. In view of the compromise, Harpal Singh gave one separate room to Smt. Pritam Kaur for her residence purposes at village Kauriwali. In order to injure the right of the plaintiff and to deprive the plaintiff and his mother, the defendant Harpal Singh executed two sale deeds on 28.5.1973 and sold land measuring 27 kanals 4 marlas for Rs.28.700/- and the suit land measuring 30 kanals 5 marlas was sold in favour of defendants No. 9 and 10 for Rs.26,100/-. Both sale deeds were without consideration and legal necessity. Harpal Singh defendant No.1 has mortgaged the land measuring 36 kanals 8 marlas to defendant Balwinder Singh. Mortgage is also without consideration and legal necessity. Defendant No. 1 has the intention to injure the interest of the plaintiff in the coparcenary property. He is trying RSA No.1779 of 1984 3 to sell the remaining land of the family, so that he may purchase the land in his own name or in the name of defendants No. 1 and 3 in order to deprive the plaintiff of his right in the coparcenary property. Plaintiff asked the defendant No.4 to 11 to admit the invalidity of the alienation made in their respective favours and restore back the possession of the land in their possession to the family of the plaintiff but they refused to do so. Plaintiff asked defendant No. 1 Harpal Singh not to alienate the suit land, but he did not agree. Defendant Tara Chand is minor and he is sued through his mother. Defendants were asked to admit the claim of the plaintiff, but they did not agree. Hence the suit. The suit was contested by the defendants on the ground that the property in dispute is not the Joint Hindu Family property, but that was the self acquired property of Harpal Singh. It is also alleged by the defendant that Harpal Singh has sold the land for legal necessity as Karta of the family. It is also alleged by the defendant that Ranjit Singh is not the son of Harpal Singh through Pritam Kaur. The real facts are that Inder Singh grand father of the defendant Harpal Singh transferred the land in favour of defendant No.1 Harpal Singh vide mutation dated 7.3.1951. So, the property became the self acquired property of Harpal Singh. It is also alleged by defendant that the plaintiff and the defendant No. 1 to 3 are not Hindu, but they are governed by Punjab Customary Law inn the matter of alienation and not by the Hindu Law, because they are Jat Sikh by caste and their livelihood is dependent upon the agriculture. It is also denied by the defendant that Pritam Kaur is the wife of Harpal Singh. It is also alleged by the defendant that the land was sold for consideration and for legal necessity and for the RSA No.1779 of 1984 4 benefit of the family. It is further alleged that the money was taken for the purchase of the agricultural land at cheaper rate in Rajasthan and also for the purchase of agricultural implements. It is also alleged by the defendant that the mortgage deed was for legal necessity and the suit is not within limitation. It is also alleged that the suit is bad for misjoinder of necessary parties and cause of action and the suit is not properly valued for the purpose of court fee and jurisdiction and the plaintiff filed the present suit in collusion with defendant No.1. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to declaration to the effect that the sale deed dated 28.5.1975 effected by defendant No.1 in favour of defendants No. 4 to 8 is null and void? OPP 2. Whether the sale deed dated 28.5.1975 effected by defendant No.1 in favour of defendant No.9 and 10 is null and void? OPP 3. Whether the agreement deed pertaining to land measuring 36 kanals 8 marlas effected by defendant No.1 in favour of defendant No.11 is null and void? OPD 4. Whether the suit land is joint family property qua the plaintiff and defendants No. 1 to 3 ? OPD 5. Whether the sale deed dated 28.5.1975 and mortgage deed were without any legal necessity, if so, its effect? OPP 6. Whether the suit is hit by limitation? OPP RSA No.1779 of 1984 5 7. Whether the plaintiff and defendants No. 1 and 2 are governed by Customary law and not by Hindu Law? OPD 8. Whether the plaintiff has no locus standi to challenge the impugned alienation?OPD 9. Whether the suit is bad for misjoinder of parties and causes of action? If so, its effect? OPD 10.Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD 11.Whether the plaintiff has filed the present suit in collusion with defendant No.1? If so, its effect? OPD 12.Relief. The Trial Court after recording evidence of both the parties and hearing the counsel for both the parties, decided all the issues against the plaintiff and in favour of the defendants, and consequently dismissed the suit of the plaintiff vide judgment and decree dated 19.8.1982. Feeling dis-satisfied with the above said judgment dated dated 19.8.1982, the plaintiff preferred the First Appeal. The said appeal was also dismissed vide judgment dated 8.12.1983 passed by Shri J.C.Aggarwal, Additional District Judge, Ferozepur. Still feeling dissatisfied with the aforesaid judgments, the plaintiff-appellant has preferred the present regular second appeal. Learned counsel for the appellant has submitted that finding of both the Courts below to the effect that plaintiff is not the son of defendant No.1 Harpal Singh is the result of misreading and misinterpreting the evidence on the file. The cogent and convincing evidence in the shape of RSA No.1779 of 1984 6 matriculation certificate Ex.P-1, birth certificate Ex.P-2, Chowkidar register Ex.P-4, mid wife register Ex.P-5, besides the oral evidence led by the plaintiff regarding relationship of the plaintiff that Harpal Singh has not even been discussed in a right prospective by both the Courts below. Even the legal presumption under Section 112 of the Evidence Act, has been ignored. The said provisions of law shows that if a child is born during the subsistence of valid marriage, there is presumption of legitimacy of the child unless adverse party is able to prove that husband has no access to the wife. To support this contention, learned counsel for the appellant has relied upon the following authorities :- 1. Perumal Nadar (dead) by Legal Representative. vs. Ponnuwami Nadar (minor) AIR 1971 Supreme Court Page 2352 ; and 2. Darshan Singh vs. Ram Pal Singh and another AIR 1991 Supreme Court 1654. It is further contended that finding of both the Courts below that plaintiff has failed to prove that property in dispute is joint Hindu family coparcenary property is also the result of misreading and misinterpreting the evidence on the file. It is further contended that finding of the First Appellate Court to the effect that other property has been purchased in Rajasthan and on that account the plaintiff has failed to prove that the sale in question is not the result of mis-management of the property is wrong on the face of it. The property has not been purchased in the name of Harpal Singh, the father, RSA No.1779 of 1984 7 but the same has been purchased in the name of step brothers of plaintiff. So, that is not an act of good management of the Joint Hindu Family property. In reply to the above-noted submissions, counsel for the respondent has supported the judgment of both the Courts below and it is submitted that there is concurrent finding of fact recorded by both the Courts below that plaintiff is not the son of Harpal Singh defendant No.1. The said finding of fact cannot be interfered in the second appeal in view of authority Kamla and others vs. Smt.Laxmi Bai and another 1984 The Punjab Law Reprter 38. Section 112 of the Evidence Act is not attracted as Pritam Kaur mother of the plaintiff was residing separately and Harpal Singh has no access to her. So, the authority Perumal Nadar (dead) by Legal Representative's case (supra) is not helpful to the appellant. It is further submitted that there is concurrent finding of fact recorded by both the Courts below that the property is not ancestral. In view of authority Gopal Singh and others vs. Ujagar Singh and others AIR 1954 (SC) 579, the said question cannot be allowed to be reopened in the second appeal. I have heard both the sides and have gone through the records of the case. The appellant has raised number of questions of law but from the arguments addressed by both the sides, following substantial questions of law have arisen:- 1. Whether both the courts below have misinterpreted and misread the evidence on the file regarding relationship of plaintiff with Harpal Singh ? RSA No.1779 of 1984 8 2. Whether both the Courts below have misinterpreted and misread the evidence on the file holding that property is not ancestral. The learned counsel for the appellant has submitted that various documents Ex.P-1 to P-5 etc. have not been discussed by both the Courts below and on that account finding of the trial Court regarding relationship of plaintiff with Harpal Singh is perverse. However, that submission is without any substance. From the conjoint reading of the judgments passed by both the Courts below, the documents have been referred and discussed and both the Courts below have given a finding that Pritam Kaur mother of the plaintiff was living separately and Harpal Singh has no access to her and as such, the plaintiff has failed to prove the relationship of father and son between them. The trial Court has appreciated the evidence on the file and the Appellate Court re-praised the evidence. In authority Kamla and others' case (supra), this Court held that the concurrent finding of fact recorded by both the Courts below regarding relationship is not subject to re-open in view of Section 100 of the Code of Civil Procedure unless both the courts below have committed an illegality in arriving at that finding. There is nothing on the file that both the Courts below have misinterpreted and misread the evidence regarding relationship of plaintiff with Harpal Singh. So far as, the authority Perumal Nadar (dead) by Legal Representative's case (supra) is concerned that authority is not helpful to the plaintiff as in that authority itself it has been mentioned that if husband is able to establish the absence of access in that case presumption of legacy RSA No.1779 of 1984 9 of the child cannot be drawn. Both the Courts below have returned a finding that plaintiff has failed to prove that Harpal Singh has any access to Pritam Kaur and as such the above said authority is distinguishable. There is concurrent finding of fact recorded by both the Courts below that plaintiff has failed to prove that property is Joint Hindu family coparcenary property. The Hon'ble Apex Court in authority Gopal Singh and others' case (supra) has held that where there is concurrent finding regarding the nature of property as not ancestral, the same cannot be allowed to be re- opened. There is nothing on the file that both the Courts below have misread and misinterpreted the evidence regarding nature of the property. Excerpt was placed on the file but the same was not proved. The First Appellate Court has observed that even after going through the excerpt, the property is not proved to be ancestral property. In view of the above discussion, both the substantial questions of law raised above stand determined against the appellant and consequently the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 4th , 2010 sv