R.S.A.No.3878 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3878 of 2008 (O&M) Date of decision : 05.12.2011 Lakha Singh and another ....APPELLANT(S) VERSUS Teja Singh and others ....RESPONDENT(S) CORAM : HON'BLE MR.JUSTICE A.N.JINDAL *** Present : Mr.Sanjay Majithia, Senior Advocate, with Mr.Sahilendra Sharma, Advocate, for the appellants. Mr.A.S.Bhatti, -Advocate, for Mr.Ritesh Pandey, Advocate, for respondent Nos.3, 4, 5 and 7. *** A.N.JINDAL, J The suit for possession filed by Lakha Singh and Dalbir Singh sons of Fauja Singh, claiming inheritance of Teja Singh brother of Fauja Singh on the basis of natural succession, has been dismissed by the Addl. Civil Judge (Senior Division), Batala vide judgment dated 24.02.1999 and the appeal preferred against the said judgment was also dismissed on 01.05.2008 by the Ist Appellate Court at Gurdaspur. To facilitate the facts, it would be essential to describe the pedigree of the parties. Fauja Singh, Teja Singh and Dalip Singh were three brothers sons of Dhirta Singh. Teja Singh died issueless and unmarried. However, he had sold his property to Jagtar Singh-defendant No.2, Mangal Singh-defendant No.3, Pinder Singh, defendant No.4, Sukhwinder Singh- R.S.A.No.3878 of 2008 (O&M) 2 defendant No.5 and Prem Singh-defendant No.6, Avtar Singh-defendant No.7 i.e. grand sons and sons of Dalip Singh. The plaintiffs have pleaded that they and defendant Teja Singh constitute Joint Hindu Family and the suit property is joint Hindu Family coparcenary property. Defendant No.1 Teja Singh had got no right to sell any part of the joint Hindu Family Coparcenary property except for legal necessity. The sale deeds executed by him in favour of defendant Nos.2 to 7 are wrong, illegal, null, void, without consideration and without legal necessity and the same are not binding qua their rights. The defendant No.1 filed the written statement so as defendant Nos.2 to 7 have also filed separate written statement. The defendant No.1 admitted the relationship but denied if the suit property was joint of the parties. The existence of joint Hindu Family was also denied. He also denied the nature of the property being coparcenary. He further stated that the sale deeds were quite valid and for legal necessity. Since defendant No.1 required money for his domestic needs, therefore, he sold the same. Defendant Nos.2 to 7 also took the similar pleas and denied any right and locus-standi to file the present suit. Replications were also filed. From the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiffs and defendant No.1 are the co-parceners & co-owners of the suit property as alleged ? OPP 2. Whether the defendant No.1 had executed a sale deed in favour of defendant Nos.2 to 7 as alleged ? OPD 3. If issue No.2 is proved, whether the sale is without consideration and legal necessity ? If so its effect ? OPD R.S.A.No.3878 of 2008 (O&M) 3 4. Whether the suit is not maintainable ? OPD 5. Whether the plaintiffs have no locus-standi to file the present suit ? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD 7. Whether the plaintiff is entitled for the suit for possession ? OPP 8. Relief. After scrutinizing the evidence, the trial Court decided issues No.1 to 5 and 7 in favour of defendants and only issue No.6 was decided in favour of the plaintiffs. Ultimately, the trial Court dismissed the suit. The judgment was upheld in appeal. In order to establish the coparcenary property, the appellants- plaintiffs have placed on record pedigree table Ex.P1, Jamabandi for the year 1960-61 Ex.P2, Khatauni Paimesh Ex.P-3, Naksha Haqdarabar and Khatuni Ishtemal Ex.P-5. According to the revenue record, Teja Singh is shown to be the co-sharer in his individual capacity alongwith Fauja Singh father of the plaintiffs. No record was produced before the trial Court as well as the First Appellate Court in order to indicate that the property was inherited by way of natural succession from his father Jaimal Singh. According to the pedigree table, Tikka Singh head of the family was having a son Chogta. If it is so, then who is the son of Jaimal Singh, is not proved on the record. Learned counsel for the appellants now want to bring on record some documents in order to prove the property to be ancestral but these documents were to be produced at the very initial stage and no explanation has come forth as to why these documents were not produced at R.S.A.No.3878 of 2008 (O&M) 4 the appropriate stage. As such, the prayer for bringing these documents on record at this second appellate stage cannot be taken into consideration. In any case, assuming for the sake of arguments, the property was once in the hands of Dhirta Singh and on his death, Teja Singh, Fauja Singh and Dalip Singh inherited the property. In view of the fact that on the death of common male ancestor, the notional partition has to be presumed to have taken place in which Teja Singh received his 1/3rd share and in his competency, he sold the said land to defendant Nos.2 to 7 during his lifetime. Had Teja Singh not transferred the suit property during his lifetime then on his death the plaintiffs had some right in the property but since he has already transferred his share in the property, therefore, the plaintiffs cannot be said to have any share in the same. The disruption in the family has also been accepted by plaintiff Lakha Singh during his statement. He while appearing as PW-3 has stated that Dhirta Singh was having 13 Killas of land. He died intestate and mutation of his inheritance was sanctioned by way of succession. He has further disclosed that Dalip Singh had got five sons who were married. One of his sons is serving in the Army. Plaintiff Lakha Singh had got one son and his brother Dalbir Singh is having two sons who were residing with his father. Sons of Dalip Singh were also married and having separate kitchen. During the cross-examination, the plaintiff Lakha Singh has admitted that the inheritance of Dalip Singh, brother of Teja Singh had also been sanctioned in favour of his sons and his wife and they have already effected a temporary partition. This fact by itself establishes the factum of notional partition and opening of succession at the time of death of Dhirta Singh. He R.S.A.No.3878 of 2008 (O&M) 5 has also admitted in his cross-examination that his land constitutes one chunk and some of the land has been sold by him. Now the vendees are in possession of that portion purchased by them and the other portion is in possession of Buta Singh. Thus, from his statement, it transpires that it is not established as to who was karta on the death of Dhirta Singh but it stands proved that on the death of Dhirta Singh, notional partition took place and in that partition, whatever was received by Teja Singh, he sold the same. The findings recorded by both the Courts below do not smell of any such illegality or perversity, warranting interference of this Court. The case does not require support of any precedent when it is apparent that the property of the uncle, who had already transferred the same by way of sale deeds could not be claimed by the plaintiffs, being the nephews, on the ground that it was a part of joint Hindu Family Coparcenary property. All the issues appear to have been correctly decided. No question much less substantial question of law arises for determination. No grounds to interfere. Dismissed. ( A.N.JINDAL ) December 05, 2011. JUDGE mamta