Regular Second Appeal No. 833 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 833 of 2009. (O&M) Date of Decision: 20.2.2009 *** Gulab Singh. .. Appellant VS. Mam Chand & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Ivneet Singh Pabla, Advocate for the appellants. *** ARVIND KUMAR, J. Heard. Delay of 2 days in filing and 1 day in re-filing stands condoned. Through the instant regular second appeal, the plaintiff- appellant is questioning the legality and impropriety of judgment and decree dated 23.9.2008 passed by the learned First Appellate Court below by dint of which the appeal filed by respondent-defendant has been accepted and the judgment and decree dated 22.11.2006 passed by the learned trial court, decreeing the suit, has been set aside. The facts necessary for disposal of instant appeal are that, Gulab Singh plaintiff filed a suit for declaration with consequential relief of joint possession of agricultural land measuring 59 bighas and 14 biswas and also sought relief of mesne profit for use and occupation of the land by defendants No.1 to 4. The plaintiff also sought relief of separate possession by way of actual possession of the house and open land appurtenant thereto with perpetual injunction restraining the defendants from transferring, alienating, mortgaging, letting out or creating charge on the land and property which were the subject matter of the suit. It was his case that suit properties were ancestral at the hands of his father Ram Sarup and after his death on 17.4.2000, as per Hindu Succession Act, he along with defendants Regular Second Appeal No. 833 of 2009 2 No.1 to 4 who are his brothers, acquired 1/5th share each in the suit properties, but the defendants under the garb of collusive judgment and decree dated 22.4.1994, allegedly suffered by Ram Sarup in their favour, ousted him from the suit land. According to the plaintiff the judgment and decree dated 22.4.1994 is based upon fraud, misrepresentation of facts and collusion between the defendants No.1 to 4 to grab his share whereas in fact Ram Sarup, who lost his mental balance, having no legal necessity, was not even competent to suffer the decree for the whole land in the said collusive suit, in which even the plaintiff was not party therein. Hence the relief, as referred to above, were sought by him. On the other hand, the stand of defendants No.1 to 4, who are brothers, defendant No.5, the married sister and defendant No.6 the mother of the plaintiff, was that due to his mis-deeds the plaintiff was divested from the suit properties by deceased Ram Sarup and since the suit property was not ancestral in the hands of Ram Sarup (since deceased) he was well within his right to transfer the same in favour of defendants No.1 to 4. It has also been pleaded that the plaintiff has no right to question the legality of the judgment and decree dated 22.4.1994, which remained unchallenged by Ram Sarup during his lifetime and by dint of the said judgment and decree they are in possession of the suit properties and mutation has also been sanctioned in their favour. On the basis of pleadings of the parties, the issues were struck down. Both the parties led their respective evidence and on conclusion thereof and hearing the matter, the learned trial court concluded that the suit property was ancestral in the hands of Ram Sarup and as per Hindu Succession Act, he was not competent to alienate the same in favour of defendants No.1 to 4 alone, excluding the plaintiff therefrom. The judgment and decree dated 22.4.1994 was also found result of fraud since the plaintiff was neither joined in the alleged family settlement nor was made party in the suit in which judgment and decree dated 22.4.1994 was passed and thus, the plaintiff, being the member of joint Hindu family headed by Ram Sarup as its Karta, is entitled to get his share in the suit properties, left by the deceased Ram Sarup for which the learned trial court passed a preliminary decree with a direction to the defendants to hand over the share of the plaintiff as per his separate possession from the house and open land Regular Second Appeal No. 833 of 2009 3 appurtenant thereto and the defendants were further restrained from transferring, alienating, mortgaging, letting or creating charge whatever on the suit land. The judgment and decree dated 22.4.1994 and subsequent revenue entries were held not binding upon the rights of the plaintiff. The matter was taken up before the first appellate Court below by way of filing an appeal by the defendants, which, as noticed above, reversed the findings of the learned trial court and dismissed the suit of the plaintiff, leading to the institution of the present regular second appeal. I have heard learned counsel for the appellant and have gone through the paper-book carefully. The grouse of the plaintiff-appellant is that the learned appellate Court below has fallen into error while observing that the suit land was not ancestral one. There is conflicting view of both the Courts below on the issue. The discussion made by the learned first appellate Court below in para No. 25 of its judgment, while reversing the findings of the learned trial court as to the nature of the suit property, be noticed first:- “25. The another important aspect of this case is that learned trial court while recording findings under issues no.1,2 and 2-B observed that plaintiff has been able to prove that suit property was ancestral property in the hands of Ram Sarup and as such Ram Sarup could not alienate the property to the exclusion of his son Gulab Singh. However, the said findings are not correct on the basis of evidence available on file and as per relevant provisions of law on the point. On the basis of facts and evidence available on file, Ram Sarup was son of Kishan and Kishna was son of Kalu. There is no dispute on the legal proposition that property becomes ancestral property if the same is inherited through three descendants i.e. father, father's father and father's father's father since the property was alienated by Ram Sarup, it was to be proved on the file that the same property was inherited by Ram Sarup from his father, father's father and father's father's father. As per Article 223 of the Hindu Law to prove the ancestral nature of Regular Second Appeal No. 833 of 2009 4 the suit land it is to be proved on the file that the suit land was inherited through three descendants. However, in the case in hand, plaintiff has only produced one mutation no.253 Ex.P2/A on the file. That way Ram Sarup father of the appellant had inherited the land 48 bighas 7 biswas from his father Kishan. However, this proof alone could not establish the ancestral nature of the suit land. The best evidence available with the plaintiff which was required to be produced on the file was 'intkhab (excerpt), Khatoni istemal, khatoni 'paimaish' and 'naksha hak-dar-war' However, plaintiff/ respondent failed to produce the said documentary evidence which could prove ancestral nature of the suit land and in the absence of that the nature of the suit property is presumed to be non-ancestral. Law on the point is settled that all property is presumed to be non- ancestral and onus is upon the party to prove that the same is ancestral which asserting the same to be so. Such a law was laid down by our Hon'ble High Court in case Mst. Sham Kaur vs. Hari Singh etc. 1971 CLJ 702. Out Hon'ble High Court also laid down the law that even as per Punjab Custom, the expression 'ancestral property' has a special connotation. It is not sufficient to prove that last male holder had inherited the same from his grand father, and as such, it was ancestral property. It has to be established by the parties. The learned First Appellate Court below while further appreciating the law on the ancestral property, made the following observations in para No.26 and 27 of its judgment:- “26. Law on the point is also settled that even if ancestral and non ancestral are mixed up in such a manner that ancestral and non-ancestral, portions cannot be separated, the entire land is to be treated as non-ancestral. Such a law was laid down by our Hon'ble Regular Second Appeal No. 833 of 2009 5 High Court in case Tara Wanti and another vs. Shanti and another 2007(1) Rcr (Civil) 808 and Inder Singh (dead) through LRs versus Chhano and Ors. 2005(1) CC Cases 138. 27. Hon'ble High Court laid down the law in case Matu Ram (deceased) through LRs vs. Kartar Singh and others 2004(2) PLR 569 that even an admission of a party may not be enough to hold the property to be ancestral or co-parcenary as, to prove the nature of the property. The Court goes only by evidence that may come on the record of the case. In view of the law laid down by our Hon'ble High Court in above referred authority of law even the statement made by defendant on this point does not help the respondent/ plaintiff in any way. In Chhajju Ram vs. Kapuria Ram 1987 SLJ 727 law was laid down that to prove that certain property is ancestral, the same has to be proved beyond doubt that the property was inherited by common ancestors, which the plaintiff has failed to prove in this case.” From the above discussion, it is abundantly clear that the very substratum of the case of the plaintiff that the suit property was ancestral was found proved otherwise. Once this is the position, the leaned Appellate Court below rightly concluded that Ram Sarup was legally competent to execute and suffer a decree in favour of his four sons, excluding the plaintiff, who neither had any concern with the suit land nor remained in possession thereof and that the judgment and decree passed were neither based upon fraud or misrepresentation, as alleged by the plaintiff since Ram Sarup, who remained alive for more than six years after passing of the said judgment and decree and he, in his lifetime never challenged the same and consequently the plaintiff was rightly held not entitled to the relief of declaration and separate portion by way of actual partition. Thus, in the facts and circumstances of the case, it cannot be said that the approach of Regular Second Appeal No. 833 of 2009 6 the learned Appellate Court below in dismissing the suit of the plaintiff is either illegal or perverse. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 20,2009 Jiten