R.S.A.No. 2018 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2018 of 2009 (O&M) Date of decision: 7.9.2009 Sital Singh ......Appellant Versus Harminder Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. B.S.Jaswal, Advocate, for the appellant. *** SABINA, J. Plaintiff Sital Singh filed a suit for declaration with permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.) Dasuya vide judgment and decree dated 19.10.2004. In appeal, the said judgment and decree were upheld by the Additional District Judge, Hoshiarpur vide judgment and decree dated 28.1.2008. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated, the averments contained in the plaint are that plaintiff is the son of defendant No.1, who is grand father of defendant No.2. Father of defendant R.S.A.No. 2018 of 2009 (O&M) 2 No.2 has since died and he is the only male member of his father Jagat Singh. Defendant No.2 is minor and has been sued through Smt.Harminder Kaur, his mother and natural guardian who has got no adverse interest. The plaintiff and defendants No.1 and 2 are members of Joint Hindu Family and defendant No.1 is Karta of the same. The parties are governed by the Mitakshara school of Hindu Law in the matter of alienation and succession. Land measuring 12 kanals 6 marlas being 2565/6160 share of land measuring 61 kanals 12 marlas comprised in Khewat No.4158/1602261 vide Jamabandi for the year 1995-96 in Hindu Joint family ancestral coparcenary property in the hand of defendant No.1, in which, the plaintiff and defendant No.2 have got right and title by birth in equal share to that of defendant No.1. The defendant no.1 has got no right or authority to alienate the suit land or to damage its nature without the consent of the plaintiff or except legal necessity or for the benefit of the estate. Defendant No.1 has sold major portion of the suit land without the consent of the plaintiff and without legal necessity and without the benefit of the family. Now defendant No.1 is going to sell the suit land to Gurdev Singh without the consent of the plaintiff and without any legal necessity. The plaintiff requested the R.S.A.No. 2018 of 2009 (O&M) 3 defendant No.1 not to sell away the suit land but he refused. Hence, the plaintiff has filed this suit. 3. In respondent to the notice issued by the learned lower court, the defendants No.1 and 2 appeared and filed written statement by taking preliminary objections on the ground that the plaintiff has no cause of action to file the present suit and that the suit is not maintainable. On merits, it has been submitted that the suit land is the self acquired property in the hands of defendant No.1 and as such, he has every right to deal with the suit property being absolute owner. Moreover, defendant No.1 had to give the borrowed amount, spent on the marriage of his sons and daughter including the marriage of the plaintiff. Defendant No.1 is looking after, and is also bearing expenditure on all family and relatives' functions whereas the plaintiff has fallen to bad habits. Remaining averments have been denied alleging the same to be wrong and the defendants accordingly, prayed for the dismissal of the suit with costs. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the suit property as detailed in the R.S.A.No. 2018 of 2009 (O&M) 4 head note of the plainti is Hindu Joint Ancestral coparcenary property and is jointly owned by the plaintiff and defendant No.1 and 2? OPP 3. Whether the plaintiff is entitled to permanent injunction restraining the defendant No.1 from alienating suit land and from changing its nature in any manner till the partition of the suit property? OPP 4. Whether the plaintiff has got no cause of action to file the present suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiff had filed a suit for declaration to the effect that the land in dispute was Hindu joint family ancestral coparcenary property of the parties and hence, defendant No.1 had got no right or authority to alienate the same. However, the plaintiff failed to establish that the suit property was ancestral property in the hands of defendant No.1. Learned Additional District Judge in the impugned judgment has observed that the only document placed on record was a copy of jamabandi for the year 1960-61 and on the basis of the R.S.A.No. 2018 of 2009 (O&M) 5 said sole document, it could not be established by the plaintiff that the suit property was ancestral property in the hands of defendant No.1. No excerpts was proved on record to substantiate the plea of the plaintiff that the suit property was coparcenary property in the hands of defendant No.1. In appeal, the plaintiff moved an application under Order 41 Rule 27 for permission to lead additional evidence. The said application was rightly dismissed by the Appellate Court vide separate order dated 28.1.2008 as the plaintiff had failed to establish that the documents sought to be proved on record by way of additional evidence could not be produced by him during trial despite due diligence. In these circumstances, both the Courts below, after appreciating the evidence led by the parties on record, have arrived on a finding of fact that the plaintiff had failed to establish that the suit property was ancestral property in the hands of defendant No.1. The said finding of fact arrived at by the Courts below cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 07, 2009 anita .