R.S.A.No. 4107 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4107 of 2009 (O&M) Date of decision: 16.11.2009 Gurdial Kaur and others ......Appellants Versus Jaspal Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.Naiya Gill, Advocate, for the appellants. **** SABINA, J. Plaintiff-appellants filed a suit for declaration, which was dismissed by the Civil Judge (Jr.Divn.), Ropar vide judgment and decree dated 25.9.2006. In appeal, the said judgment and decree were upheld by the District Judge, Rupnagar vide judgment and decree dated 26.7.2008. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 6 of its judgment, are as under:- “2. Briefly stated, the facts of the present case as R.S.A.No. 4107 of 2009 (O&M) 2 enumerated in the plaint are that the plaintiffs and the defendants comprised of a joint Hindu family and the property is ancestral and coparcenary property belonging to forefathers and common ancestors of the family. The plaintiffs have acquired their right in the suit property by birth in the family. As per pedigree table enumerated in para No.2 of the plaint Jaspal Singh defendant No.1 is the son of Mohan Singh son of Dalip Singh. Jaspal Singh is having five sons namely Ajmer Singh, Charanjit Singh. Surjit Singh, Shamsher Singh and Darshan Singh. 3. It is further pleaded that suit property situated in village Bari Jhallian is the ancestral property and the land situated at village Kamalpur was allotted to Dalip Singh great grand father of the plaintiffs in west Pakistan and Dalip Singh died. Pakistan itself and after the partition of the country in 1947 grand father of the plaintiffs and defendants No.2 to 4 were allotted the land at village Kamalpur in lieu of the claim of the land left in Pakistan. Due to some quarrel the defendant No.1 has started asserting that he is the sole owner of the land. The defendant No.1 was requested to admit the claim of the plaintiff, but with no effect. Hence, the present suit. 4. Upon notice defendants No.1 to 3 appeared and contested the suit, whereas, defendant No.4 has R.S.A.No. 4107 of 2009 (O&M) 3 been proceeded against ex parte. 5. Defendants No.1 to 3 filed their written statement raising preliminary objections to the effect that the plaintiffs have not come to the court with clean hands and that the suit is not maintainable in the present form. 6. It is further pleaded that the plaintiffs and defendants No.2 to 4 have already taken their share out of the coparcenary property. Ajmer Singh plaintiff is a disabled person. A shop was purchased in his name for a sum of Rs.65,000/- in the year 1970 so that he could run a tailoring shop, but he sold the said shop for an amount of Rs.1,75,000/- in the year 1984-85 and no money was returned to the defendants. In this way the plaintiffs have already taken the share of Rs.1,75,000/- from the income of the family which is from the land in dispute. In the year 1970 a truck was purchased by defendant in the name of Charanjit Singh but he could not run the transport business. Consequently, in the year 1975 the said truck was sold. Charanjit Singh plaintiff is an alcohol-addicted person and is of bad character and he was sentenced to undergo imprisonment for a period of one year under Section 370 IPC. The defendant No.1 has four daughters and their marriages were performed by him. The plaintiffs have got much share out of family R.S.A.No. 4107 of 2009 (O&M) 4 property. It was averred that Charanjit Singh involved the defendants in a false case under Section 326 IPC and the defendant No.1 is an old man of 82 years. The remaining facts averred by the plaintiffs were denied and defendants prayed for the dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs are entitled to declaration as prayed for? OPP 2. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPP 3. Whether the plaintiffs have not come to the Court with clean hands and have concealed material facts? If so, its effect?? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The case of the plaintiffs was that the suit property was Hindi Joint family and coparcenary property of the parties. The said fact was not denied by the defendants. The case of the defendants was that the plaintiffs had already taken their share from defendant No.1. The plaintiffs filed a suit for declaration that they were owners R.S.A.No. 4107 of 2009 (O&M) 5 to the extent of 1/6th share in the suit land. However, the said relief could not be claimed by the plaintiffs. Each coparcener is entitled to joint possession and enjoyment of the joint property. The suit for declaration by the sons that they were owners in joint possession of the property during the life time of their father is not maintainable. Moreover, no injunction can be granted against the karta of the joint Hindu family for restraining him from alienating the joint Hindu family and coparcenary property. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 16, 2009 anita