IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 440 of 2000. Reserved on: 17.06.2011. Decided on: 30.08.2011. _____________________________________________________ Yashwant Singh and another. …Appellants. -Versus- Najku and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the respondents. : Mr. Neeraj Gupta, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 24.05.2000, passed by the learned Additional District Judge, Mandi, H.P. in Civil Appeal No. 31 of 1995. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellants-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) filed a suit for declaration and joint possession to the effect that the land detailed in the plaint, measuring 45-12-13 bighas, situated in DPF Dhadra No. H.B. 511 illaqua Ramgarh, Tehsil Karsog, District Mandi (hereinafter referred to as “the suit land” for brevity sake) being ancestral and coparcenary property of the parties and the plaintiffs being member of the said joint Hindu 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - family, have got right, title and interest in the suit property by virtue of their birth and respondent (deceased)-defendant No. 1, namely, Padma, (hereinafter referred to as the “defendant No. 1” for the convenience sake), being ‘Karta’/Manager of the aforesaid joint Hindu family, had no right, title or authority to alienate, transfer, sell, gift or dispose of the same and the gift deed No. 556, dated 27.11.1992, Ex. PW-1/B alongwith mutation No. 155, dated 30. 12. 1992, Ex. PW-1/C are wrong, illegal, null and void. According to the plaintiffs, there was no actual delivery of possession of the suit property and the plaintiffs have also prayed for decree for joint possession to the extent of 1/8th share in the suit land. According to them, the defendant No. 5 has succeeded in getting the suit property gifted to defendants No. 2 to 4 vide Ex. PW-1/B. Defendants No. 2 to 4 are sons of defendant No. 5 Shri Durga Nand. 3. Written statement was filed by defendants No. 2 to 4. On merits, it is admitted that defendant No. 1 (since deceased) was joint owner in possession of the suit land to the extent of 1/4th share, but it is denied specifically that the suit land is ancestral and coparcenary property of the parties. It is denied that defendant No. 1 has inherited the suit land from his grand father. It is stated that Ramu, Phitu, Ghungar, Surju, Basakhu and Dinu were real brothers. Bashakhu died issueless and his estate was inherited by his five brothers. Phitu gifted his entire share in the suit land in favour of defendant No. 1. Defendant No. 1 has only inherited the ancestral property of his father, named, Ramu, which is about 5-10-0 bighas and the defendant also got about 5 ½ bigha of the land through gift which did not come under the - 3 - perview of ancestral property. Defendant No. 1 has only disposed of that property by way of gift , which he got from his uncle named Phitu. According to them, the ancestral property inherited by defendant No. 1 was still intact. It is admitted that defendant No. 1 gifted 1/8th share in the suit land to defendants No. 2 to 4 out of his own consent and free will. It is also asserted that possession of the suit land was also delivered to defendants No. 2 to 4 and now these defendants are owners in possession of the suit land. 4. Replication was filed by the plaintiffs. Learned trial court framed the issues on 29.09.1993. The trial court dismissed the suit on 30.05.1994. Thereafter, the plaintiffs preferred an appeal before the learned Additional District Judge, Mandi, H.P.. The same was dismissed on 24.05.2000. Hence, this Regular Second Appeal. This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether the presumption of jointness of a Joint Hindu Family has to be presumed. 2. Whether the findings are vitiated on account of mis-construction and mis-appreciation of the pleadings of the parties as well as oral and documentary evidence on record? 3. Whether gift deed Ex. PW-1/A is invalid for want of delivery of possession and it could not be executed for want of right to do so.? 5. Mr. G.D. Verma, learned Senior Advocate has strenuously argued that the suit property was ancestral and the same could not be gifted by defendant No. 1, namely, Padma to defendants No. 2 to 4 vide Ex. PW-1/B. He then argued that both the courts below have mis-read and mis-appreciated the oral as - 4 - well as documentary evidence. He finally contended that since the possession was not delivered, gift deed Ex. PW-1/B is invalid. 6. Mr. Neeraj Gupta, learned counsel for the respondents has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Gift deed No. 556, dated 27.11.1992 is Ex. PW-1/B and the mutation No. 155, dated 30.12.1992 is Ex. PW-1/C. Plaintiff Yashwant Singh has appeared as PW-1. According to him, the suit land has been inherited by his father from his ancestors, but defendant No. 1 Padma, who is his father, executed a gift deed of the suit land in favour of defendants No. 2 to 4. According to him, defendant No. 1 had no right to execute the gift deed. In his cross-examination, he has deposed that the name of his great- grandfather was Jarbu, whereas, Ramu was his grand-father. He has also admitted that Phithu was real brother of his grand- father, named Ramu. Phithu died issueless. His estate was inherited by his two widows, namely, Kesru and Shawani. He has categorically deposed that defendant No. 1 Padma inherited the share of Kesri and Shawani after their death. He has admitted that the land which was inherited by his father from Ramu is still existing in the name of his father, i.e., defendant No. 1 in the revenue record. 9. PW-2 Goverdhan has supported the version of PW-1. He has deposed that some land was owned by Phithu and after his death, the same was inherited by his widow. He has also admitted that Phitu has some land in Khadra. Thus, it is evident from the - 5 - statements of PW-1 and PW-2 that defendant No. 1 has inherited land from the widows of Phithu. This is also fortified by copy of Sajra Nasab, Ex. PW-1/E. 10. DW-1 has deposed that he has gifted only that land in favour of defendants No. 2 to 4 which has been inherited by him from Kesru widow of Phithu, whereas, the land inherited by him from his ancestors was intact. He has gifted only 5-14-2 bighas of the land in favour of defendants No. 2 to 4 out of the land which has been inherited by him from Kesri, measuring about 8 ½ bighas. DW-2 Hira Lal has deposed that some family partition has taken place between the parties about 15 years back. However, neither any pleading nor any evidence has been led to this effect. The plaintiffs have failed to prove that the land which has been gifted by defendant No. 1, namely, Padma to defendants No. 2 to 4 vide Ex. PW-1/E, was ancestral. Plaintiffs have also not led any evidence that the possession of the land was not delivered to defendants No. 2 to 4. 11. Now, the Court will advert also to the documents placed on record by the parties. According to the mutation, Ex. P- A, Jarbu was the grand-father of defendant No. 1. This is also proved by Sajra Nasab, Ex. PW-1/E. He was possessing the land measuring 38-14 bighas in mauza Ramgarh. Defendant No. 1 Padma has inherited to the extent of 1/5th share, whereas, Phithu who was brother of Ramu, the father of defendant No. 1, also inherited 1/5th share in the said land and the remaining share was inherited by the sons of Jarbu. According to mutation Ex. P- B, 1/5th share of Phithu in the land measuring 38-14 bigha alongwith other land measuring 6-16 bighas was also owned by - 6 - Phithu. This was inherited by Kesri and Shawani alongwith the other land after the death of Phithu, being the widows of Phithu. After the death of Kesru, according to mutation Ex.-PD, Padma, defendant No. 1 inherited 1/4th share in the land measuring 6-16- 0 bigha, which was owned by Kesru, widow of Phithu. He also inherited 1/5th share of Kesru in the land measuring 38-14 bighas, which means that as per Ex.-PD, the defendant No. 1 inherited about 7 bigha of land from Kesru, out of land measuring 38-14 bigha, comprised in Khata Khatauni No. 598/682 and he also inherited 1 ½ bigha of the land from Kesru out of the land measuring 6-16 bigha, which was exclusively owned by Kesru. Accordingly, defendant No. 1 Padma has inherited about more than 8 ½ bigha of the land in mauza Ramgarh from Kesru, who was widow of Phithu. This position is not in dispute in view of Misal Haqiat Bandobast Jadeed, Ex. PW-1/D. This land was situated in Khadra. PW-1 has categorically deposed that defendant No. 1 also inherited some land from widows of Phithu. According to the Jamabandi for the year 1987-88, Ex. PW-1/A, copy of Bandobast Jadeed, Ex. PW-1/D as well as copy of Jamabandi for the year 1960-61, Ex.-PB, Padma, defendant No. 1 has been recorded to be the owner to the extent of 1/4th share in the entire land of the Khata measuring 45-12-13 bigha. The land, which defendant No. 1 has inherited from Jarbu, his grand-father in mauza Ramgarh, is by way of Ex. PW-3/A. This land is not connected with the land situate in Khadra. The land which the defendant No. 1 has inherited from Kesru, cannot be treated as ancestral property. He had every right to dispose of the same in the manner he liked. Both the courts below have correctly - 7 - appreciated the oral as well as documentary evidence. Plaintiffs have not led any evidence, as noticed above, that the possession was not delivered to defendants No. 2 to 4. There is averment in the written statement that the possession was delivered to defendants No. 2 to 4 at the time of executing the gift deed. There is no substantial question of law involved in this Regular Second Appeal. 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application (s), if any. No costs. (Rajiv Sharma) Judge August 30, 2011. (bhupender) - 8 -