RSA No.1179 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1179 of 2010 (O&M) Date of Decision: 07 .11.2011 Mandeep Singh ...Appellant Vs. Mahinder Singh & Ors. Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.Ashish Gupta, Advocate, for the appellant. Mr.R.S.Cheema, Advocate, for respondents No.1 to 3. --- A.N.Jindal, J. This is a dispute between the father, sons and grand- sons. The plaintiffs filed a suit for declaration to the effect that they are owners in possession to the extent of 524/5202th share i.e. RSA No.1179 of 2010 2 to the extent of 262/5202th share each of the agricultural land as fully detailed in the head-note of the plaint and the defendants have no right, title or interest in the same. Trial court dismissed the suit on 10.11.2008 against which appeal was preferred and the same was also dismissed on 6.03.2009. Mahinder Singh defendants No.1 had three sons namely, Bhag Singh, Karnail Singh and Punjab Singh. Plaintiff No.1 is the son of plaintiff No.2 and defendants No.2 and 3 are the grand-sons of Mahinder Singh. Plaintiffs have claimed 524/5202 share in the suit land and have also challenged the registered release deed No.9 dated 4.4.2003 executed by defendant No.1 in favour of defendants No.2 and 3 to the extent of 856/5202th share out of suit land measuring 260 kanals 2 marlas. They have also sought a relief of permanent injunction restraining the defendants from interfering in their peaceful possession over the suit land. Mahinder Singh had also other three sons namely Raj Singh, Karnail Singh and Sawan Singh who had already expired. Defendants contested the cause by filing written statement in which they, besides taking various preliminary objections, denied the allegations and further stated that suit property is self-acquired property of defendant No.1 and is not the ancestral coparcenary and joint Hindu family property. They also denied plaintiff No.2 to be the member of Joint Hindu family and averred that they are not owners in possession of any part of the suit RSA No.1179 of 2010 3 property. It has further been averred that defendant No.1 and his wife are living separately. Sons of defendant No.3 had separated themselves from defendant No.1 in the year 1989. Defendant No.1 who had purchased 9 acres of land in village Moonak District Karnal gave that land to his sons in equal shares. He had purchased the said land situated at village Moonak from the proceeds of 4 acres of land sold by him in the year 1974 approximately, whereas he had kept the remaining four acres of land situated at village Durana for himself and his wife Smt. Kartar Kaur as their share. Since the land situated at Moonak was also in the name of defendant No.1, so on the asking of his sons, he sold the land of village Moonak and purchased the land in village Marori and Shabhuwa in Vishalpur Tehsil Pilibhit (UP) in the name of Bhag Singh, Karnail Singh, Sawarn Singh, Sandeep Singh and Punjab Singh as per their choice. Defendant No.1 at the time of separation of his sons had given them cash amount also which the plaintiff No.2 used for constructing the house. Father of plaintiff No.2 constructed the house at the sot which was also purchased from the money given by defendant No.1 to him at Panipat. Nobody including the sons of defendant No.1 or their legal heirs, has any concern with the suit property as they had already severed relations with him. While admitting the transfer of land through lease deed No.9 dated 4.4.2003. It was also stated that release deed was quite valid and binding on the plaintiffs. From the pleadings of the parties trial court framed the following issues on 7.08.2006:- RSA No.1179 of 2010 4 1. Whether plaintiffs are owners in possession in equal shares over the land in dispute i.e. 262/5502 share each out of the total land measuring 260 kanals 2 Marlas, as fully detailed and described in Jamabandi for the year 2001-02? OPP 2. If issue No.1 is proved in affirmative, whether impugned release deed dated 4.4.2003 executed by defendant No.1 in favour of remaining defendants 2 and 3 regarding land measuring 856/5202 share being part of the land in dispute read with corresponding mutation No.1305 is liable to be declared illegal, possessory rights of the plaintiffs over the same? OPP 3. If issue No.1 is proved in affirmative, then whether plaintiffs are further entitled to consequential relief of permanent injunction restraining the defendants from interfering in their ownership and possession over the land in dispute and also from alienating the same in any manner? OPP 4. Whether plaintiffs have no locus standi to file the present suit? OPD 5. Whether plaintiffs have no cause of action? OPD 6. Whether suit is not maintainable in the present form? OPD 7. Whether present suit is hit by principle of res RSA No.1179 of 2010 5 judicata? OPD 8. Whether suit is based on false and frivolous facts and deserves to be dismissed with special costs? OPD 9. Whether suit is bad for mis-joinder and non-joinder of necessary parties? OPD 10. Whether suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 11. relief. Both the parties led evidence. Trial Court dismissed the suit and the appeal filed by the plaintiffs also met with the same fate. As regards the joint and coparcenary nature of the property it would be significant to make a reference to the statement of plaintiff Punjab Singh (PW 1) and Mandeep Singh plaintiff (PW 2). Punjab Singh (PW 1) has stated that his father Mahinder Singh, had sold the land situated at Moonak and with the said sale proceeds he had purchased the land in the name of his four sons and one grand son in Pilibhit (UP) 18 years back. He has also conceded that the suit land was being cultivated by him and Mahinder Singh exclusively. He also disclosed that plaintiff No.2 had constructed a house at Panipat from his own source and he was cultivating his own land. He has also admitted that he had sold the land of his share in Pilibhit (UP) and appropriated the sale proceeds to him. Similarly, his brother Karnail Singh had sold the land situated RSA No.1179 of 2010 6 at Pilibhit and had ensured for its sale proceeds to his wife who then was residing with his brother Bhag Singh. Similarly, sale proceeds of land sold by Bhag Singh were kept by him with himself. He has also admitted that the sale proceeds were kept by them as they were exclusive owners of the said land. All this goes to show that the sons of Bhag Singh were owning different shares in the land and they had individually sold the same and appropriated the sale proceeds for their own use. That apart, Mandeep Singh (PW 2) also sustained the claim of respondent/defendants while admitting that there was neither community of interest nor unity of possession with respect to the suit land and every one was having separate land holding. He has conceded that they were having land in Moonak and later on they had built houses at Panipat. He has also disclosed that after selling land in Moonak (Punjab) the land was purchased in Pilibhit (UP). During cross-examination he has conceded that Mahinder Singh had given separate land to all his sons and grand-sons i.e. the sons of the pre-deceased son and they were separate in mess and lodging. He has also conceded that the suit land is in the names of respondents No.2 and 3 who were sons of his uncle Bhag Singh and they alone are cultivating the land. He has also admitted that though they had filed suit challenging the release deed in favour of defendants No.2 and 3 but the said litigation was over. As a matter of fact, the land in the name of Mahinder Singh is not proved at all to be coparcenary joint Hindu family RSA No.1179 of 2010 7 property. The counsel for respondents wants to get benefit of an insertion in the release deed itself indicating that the property is coparcenary property but the said release deed was not put to Mahinder Singh. Had the same been put to him then he could have explained as to under what circumstances the said entry came to existence and in what manner the property is ancestral. In any case, such entry/admission does not prevail over the record of rights and is not sufficient to prove its coparcenary nature. Matter with regard to the coparcenary nature of the property is a matter to be proved by documents but neither any such document has been produced on record nor it is established that it was coparcenary and joint Hindu family property. It would also be pertinent to mention that frame of the suit is also bad. The plaintiffs who are claiming themselves to be co- parceners in the property, instead of filling a suit for joint possession and common enjoyment of the suit property, have claimed relief for specific share therein. In the coparcenary property, so long as joint family status subsists, the shares of the parties continue to change with the increase or decrease of co-parceners. Further, there is no denying a fact that defendant No.1 being the father was the Karta of the family. In that situation, he had every right to transfer the property for legal necessity and benefit of the estate. Plaintiffs have nowhere pleaded or asserted that the release deed executed by defendant No.1 was not for legal necessity and benefit of the estate, as such suit, as has been filed by the plaintiffs, is not maintainable. RSA No.1179 of 2010 8 Findings recorded by both the courts below are neither perverse nor against facts and are based on appraisal of evidence in right perspective. No other argument has been advanced to assert the claim on behalf of the appellant. No question of law much less substantial question of law arises for determination in this regular second appeal. Dismissed. (A.N.Jindal) 7.11.2011 Judge rp