IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 122 of 1999 Date of Decision : August 25, 2009 Sh. Surat Singh Appellant. Versus Sh. Amin Chand and another Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. G. D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for the appellant. For the respondents : None for the respondents. Sanjay Karol, J. (Oral) The appeal was admitted on the following substantial questions of law: “1. Whether the material admissions as made by respondents regarding claim of appellant have wrongly been ignored by learned District Judge, Shimla. 2. Whether the property in suit has correctly been held to be coparsonery and joint Hindu Family property between the appellant and respondent No. 2 and same could not be sold except for legal necessity. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 3. Whether the findings recorded by District Judge are vitiated for want of appreciation of pleadings of the parties and oral and documentary evidence on record. 4. Whether the learned District Judge below acted illegally and failed to exercise his jurisdiction in accordance with law by travelling beyond grounds of appeal as preferred before him and the appellant could not be taken with surprise. 5. Whether in the absence of pleadings regarding protection as contained under Section 8 of Hindu Succession Act, respondent could not be given benefit, nor provision of this Section are attracted in the present case. 6. Whether sale transaction on behalf of respondent No. 2, in favour of respondent No. 1, is illegal and void in respect of the rights of the appellant which he acquired by birth when his grand father late Sh. Jaad, was alive.” Post admission actual date notices for hearing of the present appeal was issued to the respondents but however none has chosen to appear on their behalf. The matter was also adjourned on two occasions. The plaintiff/appellant is aggrieved of the impugned judgment and decree dated 1.12.1998 passed by District Judge, Shimla in Civil Appeal No. 37-S/13 of 1997, titled as Shri Amin Chand versus Shri Surat Singh and another and Cross objections No. 62-S/13 of 1997, titled as Shri Amin Chand versus Shri Surat Singh and another. The appellant/plaintiff filed Civil Suit No. 101/1 of 1996 / 88/1 of 1989, titled as Shri Surat Singh versus Amin Chand and another in 3 the Court of Sub Judge, Ist Class, Court No. 1, Rohru, District Shimla, H.P. praying for a decree of declaration to the effect that the suit land is joint Hindu family property and the same was alienated by his father Sh. Sadhu (defendant No. 2) without any legal necessity to Sh. Amin Chand (defendant No. 1) in terms of sale deed dated 6.10.1989 (Ext. PW 1/A). Consequently decree of injunction was also sought against the defendants from permanently restraining them from interfering with the plaintiff’s possession. Defendant No. 2 remained ex-parte and defendant No. 1 contested the suit by inter alia pleading that even though defendant No. 2 was Karta of the joint Hindu family but however property in question stood sold to him only after the parties had effected partition. Simultaneously plea of sale out of legal necessity was also raised by him. Based on the pleadings of the parties the trial Court framed the following issues: “1. Whether the sale deed of the suit land executed by the defendant No. 2 in favour of the defendant No. 1 is null and void, as alleged? OPP 2. Whether the suit land forms co-parcenary Joint Hindu property has been sold without any legal necessity without the consent of other co-parceners, as alleged? OPP 3. Whether the defendant interfered with the possession of the plaintiff over the suit land, as alleged? OPP 4. Whether the suit is not maintainable, as alleged? OPD 4 5. Whether the suit is bad for non-joinder of necessary party, as alleged? OPD 6. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD 7. Relief.” Having afforded opportunity to the parties to lead evidence and having appreciated the material on record the trial Court came to the conclusion that no doubt the suit property formed part of joint Hindu family between the plaintiff and defendant No. 2 but however the alienation was for legal necessity. However, the sale in question was held to be illegal and void on the ground that specific portion of the coparcenary property had been sold without the consent of the plaintiff. Issues No. 4, 5 and 6 were decided against the defendants and the suit was decreed in the following terms: “ In view of my findings on the above issues, the suit of the plaintiff is partly decreed to the extent that sale deed of the suit land Ext. PW-1/A is declared as null and void being of specific area by the co-sharer and co-parcenary, which formed Joint Hindu family ancestral property without the consent of the co-parcenars and the defendant is permanently restrained from interfering with the possession of the plaintiff. However, the rest of the claim of the plaintiff is dismissed. There is no order as to costs. Decree sheet be prepared accordingly.” 5 Aggrieved of the same both the plaintiff and the defendant No. 1 filed appeals/cross objection which stands decided in terms of the impugned judgment and decree. While deciding the appeal the Court below framed the following points for determination “1. Whether the suit property was co-parcenary property in the hands of vendor defendant No. 2, qua his son Surat Singh plaintiff? 2. If point No. 1 proved, whether the vendor made the sale for legal necessity and he could have sold a specific portion of the co-parcenary property for legal necessity, under the law? 3. Final order.” Without considering the respective pleadings and contentions of the parties as well as the evidence led by the parties, the First Appellate Court decided the appeal by holding that the property in question had devolved upon defendant No. 2 by succession under Section 8 of the Hindu Succession Act, 1956 and as such the property was not held by him as Karta of the joint Hindu family. The conclusion was drawn on the strength of revenue documents Ext. P-2 and Ext.P-3 which evidences the fact that subsequent to the death of successor in interest of defendant No. 2 the property had devolved on all the children including the daughters. The First Appellate Court did not decide point No. 2 for having become redundant in view of decision on point No. 1. 6 In my considered view, the First Appellate Court assigned no reasons for not considering the scope of the Hindu Succession Act in the context of the pleadings and the other material on record. Similarly the matter was not considered keeping in view the contentions raised by the parties in the grounds of appeal. The grounds which weighed with the trial Court while coming to its conclusion and returning the findings have neither been considered nor dealt with by the First Appellate Court. The applicability of the provision of Section 8 of the Hindu Succession Act ought to have been considered keeping in view the specific pleadings of the parties. Unfortunately it has not been so done in the present case. The Court below also did not assign any reasons for rejecting the objection/appeal filed by the plaintiff. Hence under the circumstances a case for interference is made out. Considering that defendant No. 1 has chosen not to contest the appeal as also the fact that the First Appellate Court has not considered and appreciated the material on record, I feel that it is a fit case where the matter be remanded back to the First Appellate Court and not decided here. Under these circumstances the impugned judgment and decree dated 1.12.1998 is set aside. The appeal/cross objection are restored to its original number. The matter is remanded to the First Appellate Court for consideration afresh. The record be immediately sent back. The plaintiff shall 7 appear before the Court on 29th September, 2009 and Court shall issue notice to the parties before hearing the appeal. (Sanjay Karol), Judge. August 25, 2009 (PK)