-1- Regular Second Appeal No. 501 of 2009 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: January , 2011. Regular Second Appeal No. 501 of 2009 (O&M). Jarnail Singh and another ... Appellant VERSUS Chaman Singh Bhatoya and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Sanjiv Pandit, Advocate, for the appellants. Mr. Sanjay Majithia, Senior Advocate, with Mr.Sailender Sharma, Advocate, for the respondents. -.- MOHINDER PAL, J. Civil Miscellaneous No.1365-C of 2009. For the reasons stated in the application, which is supported by an affidavit, the same is allowed and the delay of 352 days in refiling the instant appeal is condoned. Regular Second Appeal No. 501 of 2009 (O&M). The plaintiffs-appellants are in second appeal -2- Regular Second Appeal No. 501 of 2009 (O&M). aggrieved against the judgments and decrees passed by the Courts below, whereby the suit filed by them for declaration to the effect that the registered sale deed dated 27.11.1996 executed by defendant-respondent No.3 in favour of defendants- respondents Nos.1 and 2 in respect of the land measuring 114 Kanals 7 Marlas (hereinafter referred to as the `suit land') was illegal, null and void, a sham transaction and without legal necessity and that the suit property was a joint Hindu Family property, the plaintiffs-appellants being owners to the extent of 2/5th share therein (suit land) and further for restraining defendants-respondents Nos. 1 and 2 from alienating the suit property and, in the alternative, for possession along with defendants-respondents Nos. 1, 3 and 4 was dismissed. Plaintiffs-appellants, namely, Jarnail Singh and Surinder Singh, defendants-respondents, namely, Chaman Singh Bhatoya and Kashmira Singh are real brothers and defendant- respondent Smt. Ram Piari (since deceased) was their mother whereas defendant-respondent Hardip Singh is the son of defendant- respondent Chaman Singh Bhatoya. As per the case of the plaintiffs-appellants, they along with defendants-respondents except defendant-respondent No.2 constitute a Joint Hindu Family. The suit land was purchased out of joint funds in the name of Smt.Ram Piari (since deceased), she being the `Karta' of the Joint Hindu Family. According to the plaintiffs-appellants, defendant-respondent No.1, -3- Regular Second Appeal No. 501 of 2009 (O&M). who is an Advocate by profession, with the intention to deprive the plaintiffs of their legal rights, got sale deed dated 27.11.1996, executed from defendant-respondent No.3 in favour of defendants-respondents Nos.1 and 2 in respect of the suit land. This sale deed was without consideration and was got executed by defendant-respondent No.1 by exercising undue influence upon defendant-respondent No.3. It has been averred that out of the suit land measuring 114 Kanals 7 Marlas , land measuring 74 Kanals 18 Marlas was purchased from Tilak Raj vide sale deed dated 12.11.1987 for Rs.10,900/- in the name of Smt. Ram Piari whereas the remaining land measuring 39 Kanals 11 Marlas was purchased in her name vide sale deed dated 24.11.1987 for consideration of Rs.2500/-from Darshan Lal. It has been alleged by the plaintiffs that both these sale deeds had been got executed by defendant No.1 in favour of defendant No.3 from the funds of the Joint Hindu Family. Further, defendant No.1, in connivance with defendant No.3, mortgaged the land measuring 16 Kanals out of the suit land in favour of Primary Co-operative Agricultural Development Bank Ltd. on 26.8.1997 for raising loan of Rs.1,13,000/-. That land had already been disposed of by defendant No.3 in favour of defendants Nos.1 and 2 on 27.11.1996. No sale consideration was paid before the Sub Registrar at the time of alleged execution and registration of sale deed dated 27.11.1996. -4- Regular Second Appeal No. 501 of 2009 (O&M). It is further case of the plaintiffs that defendant No.1 also created forged and fabricated agreement to sell dated 1.6.1994 to deprive the plaintiffs of their legal ownership of land measuring 28 Kanals. Defendant No.1 had also destroyed 1700 eucalyptus trees grown in this land measuring 28 Kanals, for which F.I.R. No.123 dated 7.3.1997 was registered against defendant No.1 and others. Subsequently, another F.I.R. No.74 dated 7.7.1997 was also registered against defendant No.1 and others. It is further averred that plaintiff-appellant No.1 was in joint possession of the suit land and had raised orchard consisting of 200 orange plants and 300 `Kinnu' plants vide permits dated 10.8.1992 and 1.9.1994. On the above allegations, the instant suit was filed by the plaintiffs-appellants for declaration to the effect that the registered sale deed dated 27.11.1996 executed by defendant- respondent No.3 in favour of defendants-respondents Nos.1 and 2 in respect of the suit land was illegal, null and void, a sham transaction and without legal necessity and that, as no partition had taken place, the suit land was a Joint Hindu Family property, the plaintiffs-appellants being owners to the extent of 2/5th share and further for restraining defendants-respondents Nos. 1 and 2 from alienating the suit property and, in the alternative, for possession along with defendants-respondents Nos. 1, 3 and 4. In the joint written statement filed by the defendants- respondents, the averments made by the plaintiffs-appellants in -5- Regular Second Appeal No. 501 of 2009 (O&M). their plaint were controverted. It was pleaded that defendant No.1 had purchased the suit land by spending from his own income and from the income of her wife, who was in service since 1.1.1982. It was further pleaded that defendant No.1 had also spent the amount received as compensation by him due to accident in the year 1979 to purchase the suit land as well as other land. Defendant No.1 had served in Central Government from October 1968 to the year 1977 when he was bachelor. At the time of filing the written statement, defendant No.1 was practicing as an Advocate at Hoshiarpur. Parents of defendant No.1 were totally dependent on his income when he joined service in 1968. One residential plot measuring 13 Marlas was purchased by defendant No.1 in Village Randhawa Barota. The plaintiffs and defendants Nos.1 and 4 inherited from their father land measuring 1 Kanal 3 Marlas besides three residential plots. Land measuring 14 Kanals 9 Marlas was purchased by defendant No.1 in the name of his father as `Benamidar' in 1975, but mutation had wrongly been sanctioned in the name of the plaintiffs and defendant No.4. The land inherited from the father of the parties was not yielding any income. The suit land was purchased in the name of defendant No.3 with the earnings of defendant No.1. Even defendant No.1 had paid money on behalf of vendees of registered sale deeds dated 12.11.1987 and 24.12.1987. It was pleaded that relations between the plaintiffs and defendants were strained since long and litigation was -6- Regular Second Appeal No. 501 of 2009 (O&M). going on between them. It was further pleaded that the suit land was not a Joint Hindu Family property. Defendant No.3 never remained `Karta' of the family. The plaintiffs were students when the suit land was purchased. The trial Court, after framing issues arising out of the pleadings of the parties and recording their evidence dismissed the suit filed by the plaintiffs. The appeal preferred by the plaintiffs against the judgment and decree passed by the trial Court was dismissed by the lower appellate Court. The findings recorded by both the Courts below are the findings of fact. It could not be pointed out by the learned counsel for the appellants that such findings are based on misreading of evidence or that material evidence has not been taken into consideration. No doubt, the suit land measuring 114 Kanals 7 Marlas was purchased in the name of defendant- respondent No.3 Smt.Ram Piari (since deceased) vide two sale deeds dated 12.11.1987 and 24.11.1987, but in both the sale deeds there is no recital that Smt.Ram Piari had purchased this land with the family funds raised by the family members jointly. Land measuring 74 Kanals 18 Marlas was purchased from Tilak Raj vide sale deed dated 12.11.1987 (Exhibit P.W.11/1) in the name of Smt. Ram Piari whereas the remaining land measuring 39 Kanals 11 Marlas was purchased in her name vide sale deed dated 24.11.1987 (Exhibit P.W.11/2) from Darshan Lal. At the time of execution of both the sale deeds, defendant -7- Regular Second Appeal No. 501 of 2009 (O&M). No.1 had appeared on behalf of his mother Smt.Ram Piari. Sale deed dated 12.11.1987 was witnessed by Bhajan Ram Dadra, Advocate, who is admittedly father-in-law of plaintiff-appellant Jarnail Singh whereas the sale deed dated 24.12.1987 was witnessed by plaintiff-appellant Surinder Singh. In order to prove that the suit land, subject matter of sale deed dated 27.11.1996, which was challenged by the plaintiff-appellants, was purchased by defendant No.3 with the funds raised jointly by all the family members, they (plaintiffs-appellants), except the bald assertion, could not prove any documentary evidence to establish this fact. The statement of plaintiff Jarnail Singh, who had appeared as P.W.6 in support of the case put forth by the plaintiffs-appellants, in fact, clinches the issue. In his cross- examination, he admitted that only land measuring 2 Kanals 6 Marlas was ancestral of his father and his brother Beli Ram; meaning thereby father of the plaintiffs and defendants Nos.1 and 4 was owner of land measuring only 1 Kanal and 3 Marlas. It does not appear to be probable that with the income from land measuring 1 Kanal and 3 Marla, the family could raise such funds as to purchase suit land measuring 114 Kanals 7 Marlas, as alleged by the plaintiffs. Plaintiff Jarnail Singh (P.W.6) further admitted that defendant-respondent No.1 was in service at the time of marriage of their second sister and that he (plaintiff Jarnail Singh) was not having any account in the Bank or any Co-operative Society and that he started -8- Regular Second Appeal No. 501 of 2009 (O&M). operating his bank account in the State Bank of India in the year 1989. Jarnail Singh plaintiff (P.W.6) further admitted that his relations with his mother were not cordial and there was no income with him to purchase the suit property. It is, thus, abundantly clear that one of the plaintiffs, namely, Jarnail Singh was not in a position to extend any financial help to the family either for purchasing the land or for running the family affairs. As noticed above, out of the suit land measuring 114 Kanals 7 Marlas, land measuring 74 Kanals 18 Marlas had been purchased from Tilak Raj vide sale deed dated 12.11.1987 (Exhibit P.W.11/1) in the name of Smt. Ram Piari and the remaining land measuring 39 Kanals 11 Marlas had been purchased in the name of Smt.Ram Piari vide sale deed dated 24.11.1987 (Exhibit P.W.11/2) from Darshan Lal. Defendant No.1 had appeared on behalf of his mother at the time of execution of both these sale deeds. Sale deed dated 12.11.1987 was witnessed by Bhajan Ram Dadra, Advocate, who is admittedly father-in-law of plaintiff-appellant Jarnail Singh and the sale deed dated 24.12.1987 was witnessed by plaintiff- appellant Surinder Singh himself. In both these sale deeds there is no recital that Smt.Ram Piari had purchased this land from the funds maintained by the Joint Hindu Family. If the suit property had been purchased in the name of Smt.Ram Piari with the joint funds of the Joint Hindu Family, the appellants must have raised an objection and could have, of course, got -9- Regular Second Appeal No. 501 of 2009 (O&M). incorporated the recital in the sale deeds to this effect. Absence of any recital in the said sale deeds to the effect that the land, subject matter of these sale deeds, had been purchased with the funds maintained by the Joint Hindu Family, leads this Court to the only conclusion that the assertion made by defendant No.1 that he had purchased the suit land from the funds generated by him, is absolutely correct. Besides, Smt. Ram Piari had executed power of attorney dated 28.12.1987 and registered Will dated 28.12.1987 in favour of defendant No.1. The Will dated 28.12.1987 executed by Smt. Ram Piari in favour of defendant No.1 is attested by plaintiff- appellant Surinder Singh besides Ramjni Dass Badhan, Advocate, Hoshiarpur. Had the suit property been purchased with the Joint Hindu Family funds, Surinder Singh (plaintiff) would not have attested the Will dated 28.12.1987 executed by his (Surinder Singh's) mother in favour of his brother (defendant No.1.). In view of the above discussion, I do not find any patent illegality or irregularity in the findings recorded by the Courts below, which may give rise to any substantial question of law in the present appeal. Resultantly, this appeal is hereby dismissed being without any merit. ( MOHINDER PAL ) January 25 , 2011. JUDGE ak