Regular Second Appeal No. 872 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 872 of 2009. (O&M) Date of Decision: 25.2.2009 *** Asruddin .. Appellant VS. Girdhari Lal & Anr .. Respondents. With Regular Second Appeal No. 873 of 2009. *** Asruddin .. Appellant VS. Tara Chand & Anr .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Lokesh Sinhal, Advocate for the appellant. *** ARVIND KUMAR, J. Both the above-referred appeals are proposed to be dispose of by this common judgment passed in RSA No.872 of 2009. Few facts, necessary for the disposal of the instant appeals be noticed first. Dhup Khan, father of plaintiff-appellant Ashruddin and defendant-respondent No.2 Azmal was owner in possession of the land situated within the revenue estate of village Madiyaka, Tehsil Punhana. Vide separate sale-deeds dated 9.9.1997 he sold out land measuring 3 kanal 12 marla comprised in khewat No.52 and the land bearing khewat No.59 measuring 3 kanal 17 marlas respectively to Girdhari Lal and Tara Chand. The said sale-deeds were executed for an amount of Rs.72,000/- each. Consequently the suit land was mutated in favour of vendees vide mutations No.867 and 868 respectively. Regular Second Appeal No. 872 of 2009 2 Aggrieved with the said alienation, Asruddin filed separate civil suits and laid challenge to the sale-deeds executed by Dhup Khan dated 9.9.1997, inter alia, on the grounds that the same are without legal necessity or consideration and not binding upon his reversionary rights and sought for setting aside the same as also the consequent revenue entries and possession of the suit land to the extent of half share. The stand of vendees i.e. Girdhari Lal and Tara Chand was that the sale deeds in their favour were executed by the vendor Dhup Khan on receipt of due consideration due to legal necessity that too after the consent of the plaintiff as well as Azmal, the other son of Dhup Khan. The learned trial court, on appraisal of the evidence produced on record, though held the property, the subject matter of sale-deeds, as ancestral in the hands of Dhup Khan but, however, finding that the witnesses of plaintiff himself claimed that the custom which exists does not preclude a proprietor from alienating the suit property even if it is ancestral but only for legal necessity, held that the said alienation was made by Dhup Khan after receiving the consideration, out of the legal necessity since he wanted to construct a house. For arriving at the said conclusion the learned trial court appreciated the evidence produced on record as well as catena of judgments referred to during the course of arguments and accordingly dismissed the suit. Dis-satisfied with the same, the plaintiff-appellant preferred separate civil appeals before the learned first appellate Court below and questioned the legality and propriety of the judgment passed by the learned trial court, but there also the fate remained the same and the findings of learned trial court were up-held and the appeals were dismissed, leading to the filing of the aforesaid regular second appeals. I have heard learned counsel for the appellant and have gone through the paper-book carefully. The judgments and decrees of both the Courts below have been attacked solely on the ground that the sale-deeds of the land, which proved to be ancestral, were not out of the legal necessity of the deceased and thus, not binding upon the rights of the plaintiff. A reliance has been placed on the judgments reported as Lajja Ram and others Vs. Abdul Rahim Khan and another AIR 1928 Lahore 437 and Moman Vs. Radha Kishan AIR 1974 (P&H) 186, to say that a person is not entitled to alienate the ancestral Regular Second Appeal No. 872 of 2009 3 property to get a better for himself in addition to one already possessed unless necessity for getting a new house is established and shown to be insufficient for the needs of the family. Let us first advert to paras No.12, 13, 14 & 15 of the judgment passed by the learned Appellate Court below, which reads thus:- “12. Now it is being claimed that the legal necessity could not be proved and as per settled proposition of law the onus to prove as to whether the sale was for legal necessity or not lies on the vendee and in the sale deed Ex.D1 it is mentioned that the money was required for house-hold expenses and in the written statement it was specifically pleaded that Dhoop Khan needed money for the construction of his house and contesting defendant against took a stand that bonafide enquiries were made and plaintiff and defendant-2 were the consenting party at the time of sale. When evidence was given PW1 in his cross examination denied the suggestion that Dhoop Khan had constructed a house and further stated that Asrudin constructed his house separately. PW2 Rehmat in his cross examination admitted that Dhoop Khan and his sons resided in the same house and Ashrudin was separate and in the cross examination PW2 specifically admitted that Dhoop Khan had constructed his house in the fields after the sale deed. PW3 Ashrudin plaintiff denied the suggestion that after the sale Dhoop Khan constructed his house. However it was admitted that they are having a house in the fields. However, DW1 Din Mohd. claimed that Dhoop Khan was in need of money for the construction of his house and for that purpose he sold his land and the house occupied by Dhoop Khan was not sufficient for residence of whole of the family and after the sale of the land Dhoop Khan constructed a house. Likewise DW2 who is none else but real brother of the plaintiff stated Regular Second Appeal No. 872 of 2009 4 that both the sons of Dhoop Khan were present at the time of sale and sale was with the consent of both the brothers and DW2 was also one of the attesting witnesses and DW2 again stated that Dhoop Khan was in need of money for construction of his house and DW2 again stated that the sale consideration was utilised for construction of the house and for making payment of the building material. Girdhari Lal DW3 purchaser stated in his affidavit that the sale was with the consent of both the sons of Dhoop Khan and at the time of sale both were present and when the land was purchased Dhoop Khan disclosed that he is in need of money for construction of his house and out of the sale consideration Dhoop Khan constructed a house. 13. Now it is being claimed that Azmal is colluding with the defendant No.1 but statement Ex.D9 and cross examination Ex.D10 made by Asrudin in another suit reflects that the present plaintiff appellant admitted in that statement that both the brothers were having cordial relations and in the testimony of PW3, the present plaintiff could not say anything with respect of collusion in between Azmal and plaintiff. PW2 has admitted that Dhoop Khan had constructed his house in the fields but then after it was claimed that house was constructed by Azmal and Azmal DW2 is claiming that house was constructed by Dhoop Khan out of the sale consideration of the disputed land and as such even from the testimony of PWs the construction of the house is proved. As per settled proposition of law it is to be seen as to whether there was any legal necessity or not and actual utilisation of money need not be proved. But in the present case even actual utilisation of money for construction of a house is proved. Regular Second Appeal No. 872 of 2009 5 14. In addition to this Azmal another son of Dhoop Khan is the witness to the sale deed and has also stepped into the witness box and when there is no proof of collusion in between the defendant no.1 and Azmal son of Dhoop Khan, certainly the testimony of Azmal real brother of the plaintiff carries much weight and according to DW2 Azmal his father Dhoop Khan was in need of money for construction of his house and the land was sold with the consent of both the brothers i.e. plaintiff and DW2 Azmal and sale consideration was utilized for construction of a house. In absence of collusion the testimony of real brother of the plaintiff is to be given due weight and there is no proof of collusion rather in another litigation, plaintiff as per statement Ex.D10 admitted that there is no dispute in between both the brothers and Dhoop Khan used to consult both the brothers in family transactions. In the plaint there is no plea with respect to collusion in between Azmal and defendant Girdhari and as such again it is to be inferred that there had been no collusion in between the purchaser and Azmal son of Dhoop Khan and both the brothers i.e. plaintiff and defendant no.2 were the consenting party to the sale deed and again it is established on record that defendant Girdhari before the purchase of the land had made bonafide enquiries. 15. According to the law laid down in 1968 PLR 26, Shankar Lal Vs. Lakhbir Singh, utilization of funds by the alienor is not to be proved by the alienee and according to law laid down in 1969 current Law Journal, 804, Gurdev Singh Vs. Baldev Singh it is not necessary that necessity is to be mentioned in the document regarding transfer and alienee must show either that the necessity in fact existence or that after due enquiry, he bonafide believed it to be so existing. In the Regular Second Appeal No. 872 of 2009 6 present case even after re appreciation of evidence discussed above, it is established on record that before purchase of the land defendant conducted bonafide enquiries and again it is established on record that Dhoop Khan was in need of money for construction of the house and construction of house is undoubtedly a legal necessity and as such the sale could not be proved to be without legal necessity.” From the above observations, there leaves no manner of doubt to conclude that the said alienation was out of the legal necessity. In the case law cited by learned counsel for the appellant viz. Lajja Ram and Moman's case (supra) an exception has been provided to alienate ancestral land, however, out of legal necessity, which stands duly proved and satisfied by the defendants by leading cogent and convincing evidence and thus, the case laws have no applicability in the present case. Even it stands established from the testimony of Azmal-defendant No.2, who is none else but the brother of plaintiff and having similar interests in the suit property, that the said alienation was for legal necessity of constructing another house since the existing house was falling short of requirement of Dhoop Khan, his married sons and their families and that the said transfer was made with the consent of plaintiff who was present at the time of execution of said sale- deeds. Thus, this Court is of the considered view that no question of law warranting admission of appeals would arise. There are concurrent findings of fact recorded by both the Courts below. The findings are based on cogent evidence, oral as well as documentary, and it cannot be concluded that the findings are laconic or they lack the support of evidence. Therefore, the appeals do not deserve to be admitted being devoid of merit. Accordingly, the same are dismissed. A copy of this order be placed in RSA No.873 of 2009. (ARVIND KUMAR) JUDGE February 25,2009 Jiten