RSA No.1353 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1353 of 2010 (O&M) Date of decision: 27.4.2010 Jagtar Singh ......Appellant(s) Versus Surjeet Kaur and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.S. Mehta, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) CM No.4025-C of 2010 For the reasons mentioned in the application, delay of 36 days in refiling this appeal is condoned. CM stands disposed of. RSA No.1353 of 2010 This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that he along with defendant No.6 were the owners in possession in equal shares of the suit land and further, the mutations sanctioned in favour of respondents were void ab initio with permanent injunction restraining the defendants from interfering into lawful possession of the plaintiff and further alienating the suit land in any manner and restraining respondents No.1 to 3 from getting the suit land partitioned, was dismissed. As per the averments made in the suit, the suit land was RSA No.1353 of 2010 (O&M) 2 owned and possessed by Swatanter Singh, father of the parties and the suit land was ancestral. A family settlement took place between the parties on 25.7.1995 and according to the aforesaid settlement, the plaintiff and defendant No.6 had become the owners in possession of the suit property and the other defendants by suppressing the aforesaid facts, got entered mutation bearing No.2958 and 18936 in their favour which was liable to be set aside. It was further alleged that even if the family settlement was not proved, then also the respondents, who were daughters of Swatanter Singh, were not entitled to equal share to that of sons of Swatanter Singh's suit land, being ancestral property in the hands of Swatanter Singh and in view of Section 6 of Hindu Succession Act, the daughters could get only shares out of the share of their father. Since the defendants refused to admit the claim of the plaintiff, hence this suit. The suit was contested by defendants No.1 and 3 by filing joint written statement submitting therein that the suit land was neither ancestral nor Hindu Undivided Family property. It was further pleaded that no family settlement had taken place and the alleged writing dated 25.7.1995 was wrong and illegal and was result of fraud and misrepresentation. The defendants never relinquished their shares. It was further submitted that no property was divided and the defendants along with the plaintiff were in joint possession. It was further submitted that mutations entered in their favour were legal and valid and the same were sanctioned with the consent of the plaintiff. Rests of the averments were denied. Defendant No.6 filed separate written statement admitting therein that the suit land was Hindu Undivided Family property belonging to all the defendants and the plaintiff. Defendant No.6 also admitted that a family settlement dated 25.7.1995 was arrived at but the defendants were not bound by the aforesaid family settlement as the same was not entered RSA No.1353 of 2010 (O&M) 3 in the revenue record. It was further submitted that the plaintiff and defendants were owners in possession of the suit land in equal shares and the family settlement in question was a paper transaction. Defendants No.2, 4 and 5 filed their separate written statement admitting that suit land was Hindu Undivided Family property and the parties to the suit were its members. Further, it was denied that any family settlement dated 25.7.1995 was arrived at between the parties, rather the same was false and forged document and the defendants were owners in possession of their respective shares of the suit land. With these submissions all the defendants prayed for dismissal of the suit. Replication was filed by the plaintiff reiterating his stand taken in the plaint and controverting the pleas taken in the written statement by the defendants. On the basis of the pleadings of the parties, the trial Court framed the following issues: “1. Whether the plaintiff is owner in possession over the suit land along with defendant No.6? OPP 2. Whether the suit property is ancestral? OPP 3. Whether the partition sanctioned as per family settlement, is wrong and liable to be set aside? OPP 4. Whether the mutation No.18936 dated 26.9.1997 is liable to be set aside being illegal and void? OPP 5. Whether the suit is liable to be stayed under Section 10 of CPC? OPP 6. Whether suit of the plaintiff is not maintainable in the present form? OPD. 7. Relief.” Both the Courts below on appreciation of evidence and after RSA No.1353 of 2010 (O&M) 4 hearing learned counsel for the parties, dismissed the suit of the appellant holding that the appellant had miserably failed to prove the ancestral nature of the suit property and the family settlement reached between the parties. Not satisfied with the aforesaid findings of the Courts below, the present appeal has been filed by the plaintiff raising the following substantial questions of law alleged to have arisen in the present appeal: “(i) Whether the gross misreading of evidence by the courts below is the substantial question of law within the meaning of section 100 of the CPC? (ii) Whether the evidence led beyond the pleadings in the absence of particulars of fraud, misrepresentation of facts and also concealment of facts can be taken into consideration while adjudicating a cause by the courts below? (iii) Whether the nature of the land can form the subject matter of admission made by the Karta and other family members, in a family settlement? (iv) Whether in view of the provisions contained in section 58 of Indian Evidence Act, the things admitted were required to be proved by evidence? (v) Whether the admission made by a party can be used against him when such admission is made by Karta of HUF who is managing the affairs, property and business and whether it would be a relevant fact and would not be required to be proved in view of the law laid down in the authority reported as 2008(1) PLR Page 595 Hon'ble Supreme Court?” In support of this appeal, learned counsel for the appellant RSA No.1353 of 2010 (O&M) 5 has vehemently argued that there was a gross misreading of evidence by the Courts below and thus, the impugned judgment and decrees of the Courts below are perverse and are liable to be set aside. Elaborating his argument further, learned counsel for the appellant has submitted that it has been established on record from the oral evidence that property in dispute was ancestral as all the family members and predecessor-in-interest of the appellant and that of the respondents have admitted in the family settlement that the nature of the entire properties was ancestral. Learned counsel has further argued that the testimony of DW-1 Surjeet Kaur and that of DW-2 was contradictory to each other as DW-1 in her cross-examination had stated that she signed blank papers which were converted into the shape of a document Ex.PW- 3/B and DW-2 states that at the time of attestation of Ex.PW3/B, the signatures of the family members of the appellant were not there on the said family settlement and from this contradictory stand, it is established that in fact all the family members had executed this family settlement and admitted the same before the Notary Public and duly singed in his presence and thus, the family settlement Ex.PW3/B was proved and liable to be acted upon in the eyes of law. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the substantial questions of law as raised by him are to be answered in his favour and the judgment and decrees are liable to be set aside. I have heard learned counsel for the appellant. The Courts below on appreciation of evidence have recorded a finding of fact that the appellant has failed to prove the ancestral nature of the property and the family settlement in question. From the evidence on record, no fault can be found with the aforesaid findings which are essentially finding of fact. RSA No.1353 of 2010 (O&M) 6 No substantial question of law arises in this appeal Dismissed. April 27, 2010 (RAKESH KUMAR GARG) ps JUDGE