RSA No.3560 of 2006 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.3560 of 2006 Date of decision:19.8.2010 Gurpal Singh ...Appellant vs Lakhbir Kaur and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.G.S.Bhatia, Advocate, for the appellant. Mr.Chetan Mittal, Senior Advocate, with Mr.Vshal Garg, Advocate, for the respondents. Rakesh Kumar Garg,J.(Oral) This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for declaration to the effect that decree passed in Civil Suit No.942 of 1990, is illegal,null and void with further relief of permanent injunction restraining the defendants from alienating the suit land and ousting him from joint possession, was dismissed. As per the averments, appellant Gurpal Singh and respondent No.5 Amar Kaur filed the present suit making averments that Sawan Singh their father was owner of the suit land. Sawan Singh had three sons namely Gurpal Singh, Gurdev Singh and Gurnam Singh besides a daughter i.e. appellant No.2. Appellant was living at village Pharauli with the issueless sister of his father and appellant no.2 was living with her in-laws in village Balana after her marriage. Sawan Singh developed heart ailment in his old RSA No.3560 of 2006 2 age and remained admitted in hospital from, mid July 1997 to August 12, 1997. Both of the appellants remained by his bed side whereas Gurnam Singh and Gurdev Singh often used to visit him. There they came to know of the mischief having been committed by Gurdev Singh and Gurnam Singh in respect of agricultural land, owned by Sawan Singh. The appellant immediately collected the relevant record and came to know that land was got transferred by Gurdev Singh and Gurnam Singh in favour of respondents No. 1 to 4 (who are their daughter-in-laws) without any right. Sawan Singh never informed the plaintiff with regard to any decree suffered by him in favour of the defendants. The aforesaid decree was obtained by the defendants dishonestly and taking the advantage of the absence of plaintiff from the village. There was no legal ground to file the previous suit. The entire exercise appears to have been undertaken fraudulently at the back of Sawan Singh without his knowledge. Hence the necessity to file the present suit. On the basis of the aforesaid averments, the present suit seeking declaration to the effect that the Court decree dated 25.8.1990 passed in Civil Suit No.942 of 1990 titled as Lakbir Kaur etc. v. Sawan Singh was illegal, null and void and not binding on the rights of the plaintiffs. Injunction was also sought restraining the defendants from dispossessing them from the suit land or alienating the same in any manner. Upon notice, respondent-defendants contested the suit raising various preliminary objections. In their written statement, defendants No.1 and 2 pleaded that Sawan Singh suffered the impugned decree in favour of defendants of his free will and according to family settlement which took place in the presence of the plaintiffs. Gurpal Singh plaintiff had already got his share out of the property of his father in village Chanarthal and also got RSA No.3560 of 2006 3 whole of the land situated at village Pharauli District Ambala which was joint property of whole family. The decree in question was very much in the knowledge of the plaintiffs from the very beginning. They were not the owners nor in possession of the land in dispute. On the other hand, defendants were the owners in possession of the suit land. Sawan Singh lived with his sons Gurdev Singh and Gurnam Singh till his death. He was not suffering from any serious ailment at the time of passing of the impugned decree nor he remained admitted in hospital at ambala. He had every right to transfer his land in favour of defendants and he had suffered the decree voluntarily without any pressure. Thus, the dismissal of the suit was prayed for. Defendants No. 3 and 4 in their joint written statement took similar stand as taken by their co-defendants. Plaintiffs filed replication reiterating the pleas previously raised in the plaint and by controverting the stand of the defendants. Parties led evidence in support of their respective case. The trial Court after hearing both the sides decided issue no.1 against the plaintiffs. Rest of the issues were decided against the defendants and consequently, the suit was dismissed with costs. Not satisfied from the aforesaid judgment and decree of the trial Court, appellant No.1 filed an appeal before the lower Appellate Court. However, the aforesaid appeal was dismissed vide impugned judgment and decree. While dismissing the appeal, the lower Appellate Court held that plaintiff has failed to prove that the land in question was inherited by Sawan Singh from his forefathers, and thus was ancestral co-parcenary RSA No.3560 of 2006 4 property. In fact, the lower Appellate Court recorded a finding that from the perusal of pleadings it is established that plaintiffs had no intention to plead that suit land was ancestral property and the evidence led by the appellants in this regard was not sufficient to prove that suit land was ancestral property. The Courts below also recorded a finding of fact that plaintiffs failed to establish on record that impugned decree dated 25.8.1990 was result of fraud. Still not satisfied the appellant who was plaintiff no.1 before the trial Court had approached by way of this appeal. Learned counsel for the appellant has vehemently argued that the lower Appellate Court has erred at law while holding that the appellant had not pleaded that suit property was ancestral. Elaborating his argument further, learned counsel for the appellant has vehemently argued that a specific stand was taken in the replication filed by the appellant that suit land was ancestral. Moreover, there was an admission on the part of DW3 Jaswinder Kaur that the suit land was ancestral and thus it is established on record that suit land was ancestral and Sawan Singh was not competent to suffer the decree in favour of the defendants who were not members of the joint Hindu family co-parcenary property. On the basis of the aforesaid arguments, learned counsel for the appellant submitted that the following substantial questions of law arise in this case:- 1.Whether the judgments and decree passed by the Courts below are perverse ? 2.Whether the property in question is ancestral o-parcenary property ? RSA No.3560 of 2006 5 On the other hand, Mr.Chetan Mittal, learned Senior counsel appearing on behalf of the defendant-respondents, has supported the impugned judgment and decrees of the Courts below and has submitted that on appreciation of evidence a concurrent finding of fact has been recorded by the Courts below regarding the nature of the suit land holding that the same was not ancestral property of Sawan Singh. It was further argued that there was enough evidence on the record to show that the appellant had already got his share out of the property of Sawan Singh in village Chanarthal and also received the land situated at village Pharauli and it, therefore, does not lie in the mouth of the appellant to state that Sawan Singh was not competent to suffer the impugned decree of the suit land in favour of the daughter-in-laws of his other sons. Learned counsel for the respondents further argued that one stray line in the cross examination of DW3 Jaswinder Kaur cannot be taken as an admission on the part of the defendant-respondents to hold that the suit land was ancestral, as there is no documentary evidence on record to establish the factum of ancestral nature of the land in dispute and thus the appeal having no merit is liable to be dismissed. I have heard the learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellant has failed to prove the factum of ancestral nature of the suit land. Learned counsel for the appellant was also unable to controvert the finding of the Courts below to the effect that appellant had got land at village Chanarthal belonging to his father Sawan Singh and land at village Pharauli belonging to his Bua (sister RSA No.3560 of 2006 6 of Sawan Singh). Not only this, the plea regarding the nature of the land being ancestral has been taken very vaguely in the replication by the appellant and thereafter appellant has not led any documentary evidence in the shape of revenue record to prove the same. Stray line in the cross examination of Jaswinder Kaur DW3 who is an illiterate lady cannot be taken to be an admission and relied upon in the absence of any other evidence to hold that the findings of the Courts below are perverse . Thus, I find no merit int his appeal. No substantial question of law arises in this appeal. Dismissed. (Rakesh Kumar Garg) Judge. August 19, 2010 rk