RSA No.456 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 456 of 2009 (O&M) Date of Decision: October 08 , 2009 Gurcharan Singh ...........Appellant Versus Charan Kaur and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.K.S.Rekhi, Advocate for the appellant. ** Sabina, J. Plaintiff-Gurcharan Singh filed a suit for declaration to the effect that the plaintiff is owner in possession as co-sharer of property fully detailed in the head note of the plaint in equal share. The suit of the plaintiff was dismissed by the Civil Judge (Senior Division) Patti vide judgment and decree dated 22.10.2005. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the learned Additional District Judge,Tarn Taran vide judgment and decree dated 20.8.2008. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- RSA No.456 of 2009 (O&M) 2 “ 2. Appellant/plaintiff filed a civil suit for declaration to the effect that he is owner in possession as co-sharers in land measuring 16 K-3M being 1/3rd share out of land measuring 48K- 9M and a house and plot measuring 181 Square yards as shown in the site plan situated at village Kandiala Tehsil Patti as joint Hindu Family property of Piara Singh (since deceased) fully detailed in (a) and (b) of the head note of the plaint and also for permanent injunction restraining defendant Nos. 1-B and 1-C from alienating the suit property and defendant no.27 from alienating the land allegedly purchased by him. In the alternative suit was also for joint possession. As per the plaint, Bhola Singh, Chuhar Singh and Jagat Singh sons of Attar Singh inherited suit land measuring 48K-9M as detailed in sub para (a) of the head note in equal shares. Bhola Singh died leaving behind Piara Singh (now deceased). He (Piara Singh) inherited the estate of Bhola Singh to the extent of 1/3rd share. Plaintiff was co-sharers to the extent of ½ share qua the share of Piara Singh and after the death of Piara Singh, who died during the pendency of the suit, plaintiff became owner of whole of the suit property being only son and legal heir of Piara Singh. Even on the basis of valid registered Will dated 30.12.1987 executed by Piara Singh in his favour he has become owner of the suit property. Plaintiff and Piara Singh (deceased) were owner of a house and plot in village Kandiala as Joint Hindu Family Property fully described in the head note (b) and para 2 of the plaint. Sadhu Singh son of Chuhar Singh whose name is found mentioned in the jamabandi has since RSA No.456 of 2009 (O&M) 3 died and defendants no.3 to 9 are his legal heirs who have inherited his estate. Defendants No. 10 to 14 and 24 to 26 allege themselves as vendees of some part of the suit land. Lachmman Singh has also died and defendant Nos. 15 to 19 are his legal representatives and they have inherited the estate of Lachhman Singh. Defendant No.27 allege himself to be the vendee of land measuring 16K-3M, detailed in the head note of the plaint, having purchased from Piara Singh through Amrik Singh defendant no. 28. As such they have been arrayed as defendants no.27 and 28. Execution, validity and existence of alleged sale deed dated 21.10.1998 has been denied. Defendant no.29 alleged himself to be co-sharers in the suit property which was also denied. Defendant Nos. 1-B and 1-C Charan Kaur and Swaran Kaur were married in the years 1947 and 1960 respectively and as such they have no right or interest in the suit property. Defendants No.1-B, 1-C and 27 are very high headed persons and they threatened to alienate the suit property for which they have no right to do so. Hence, the suit was filed. 3.Upon notice of the suit, the defendant Nos. 1-B, 27 and 29 appeared and filed written statements separately. Remaining defendants were proceeded against ex-parte. Charan Kaur defendant No.1B in her written statement raised preliminary objections that the suit is not maintainable in the present form, that plaintiff has got no locus standi to file the suit, that the suit is not properly valued for the purposes of court fee and jurisdiction and that the site plan is not correct according to the spot and that RSA No.456 of 2009 (O&M) 4 the suit is bad for non-joinder of necessary parties. On merits it was alleged that the suit property was self-acquired property of Piara Singh (deceased) and he executed a Will dated 16.3.98 in favour of Gurcharan Kaur defendant in his sound disposing mind as Piara Singh died in her house and his last rites were performed by her. She denied the execution of will dated 30.12.1987 in favour of the plaintiff. The plaintiff had no good relations with Piara Singh. The house and plot at village Kandiala were self acquired property of Piara Singh and he sold the house in land 11 Marlas for Rs.40,000/- on 28.5.97 in favour of Sakattar Singh, Gurvinder Singh, Satnam Singh sons of Baj Singh and he received Rs.40,000/- from them and possession was also delivered to them. The plaintiff has got no right, title or interest in the suit property. She denied all other averments contained in the plaint and prayed for dismissal of the suit. Defendant No.27 Lakha Singh in his written statement took similar preliminary objections. On merits he alleged that House and plot were self acquired property of defendant no.1 and he sold the house for Rs.40,000/- on 28.5.97 in favour of Sakatar Singh, Gurvinder Singh, Satnam Singh sons of Baj Singh and possession was delivered. He further alleged that defendant no.1 sold land measuring 16K-3M as detailed in the head note of the plaint for Rs.2,12,000/- to him, vide registered sale deed dated 21.10.1998. He is a bona fide purchaser in good faith for consideration and is protected under Section 41 of the Transfer of Property Act. The suit has been filed with mala fide intention. Plaintiff had not good RSA No.456 of 2009 (O&M) 5 relation with defendant no.1. Defendant No.1 earlier executed a Will in favour of the plaintiff which was cancelled and defendant No.1 executed a will dated 16.3.98 in favour of his daughter Gurcharan Kaur as she was looking after her old parents. All other averments made in the plaint were denied and prayed for dismissal of the suit. Defendant No.29 Satnam Singh in his written statement inter-alia raised preliminary objections that the suit is result of collusiveness of the plaintiff with other defendants only to defeat the right of the answering defendant, that the suit has been filed only to grab the property of the answering defendant and that the suit property is coparcenary and ancestral property of the plaintiff. It is also alleged that the suit property is a coparcenary and ancestral property of the plaintiff, Piara Singh and the answering defendant. He is the grand son of Piara Singh and is owner in possession of ½ share qua the share of Piara Singh in the suit property. No will was executed by Piara Singh in favour of the plaintiff. Piara Singh also never executed any sale deed in favour of defendant No.27 during his life time. The sale deed if produced is the result of mis-representation, paper transaction without consideration and without any legal necessity. It was prepared only to defraud the rights of answering defendant over the suit property. The plaintiff, answering defendant No.29 and Piara Singh became owners as co-sharers in the suit land to the extent of ½ share and after the death of Piara Singh, plaintiff and defendant No.29 became co-sharers to the extent of ½ share RSA No.456 of 2009 (O&M) 6 each qua the share of Piara Singh. All other averments made in the plaint have been denied and prayed for dismissal of the suit" On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the suit property is ancestral, joint Hindu family and coparcener property of parties?OPP 2. Whether the plaintiff is entitled for a decree for declaration to the effect that he is owner in possession as a co-sharer of the suit land to the extent of 1/6th share and in possession as co-sharer to the extent of ½ share of the house in dispute?OPP 3.Whether the plaintiff is entitled for consequential relief of permanent injunction restraining the defendants from alienating the share of the plaintiff from the suit land?OPP 4. Whether the suit is not maintainable in the present form?OPD 5.Whether the suit is bad for non-joinder of necessary parties?OPD 6.Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 7.Whether the plaintiff is entitled to join possession of the suit property as prayed for?OPP 8.Whether the plaintiff has got no locus standi to file the suit?OPD 9.Whether defendant no.27 is bona fide purchaser in good faith for consideration and protected under Section 41 of Transfer of Property Act?OPD 10. Relief.” RSA No.456 of 2009 (O&M) 7 After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Plaintiff had filed a suit for declaration to the effect that he was a co-sharer in the suit property as the suit property was a joint Hindu Family property of Piara Singh deceased. However, the plaintiff failed to establish by way of oral as well as documentary evidence on record that the suit property was ancestral property of Piara Singh and to the effect that the plaintiff was a co-parcener in the suit property. Property in the hands of Piara Singh was,thus, not ancestral property. Both the Courts below, after appreciating the evidence on record, have given a finding of fact to this effect. It has been further observed by the learned Additional District Judge in the judgment that in column No.4 of the jamabandi for the year 1911-12 and 1936-37, the suit land was recorded to be as a shamlat deh and Bhola Singh was recorded in possession of the suit property as occupancy tenant and not as owner. In these circumstances, both the Courts below have rightly held that the plaintiff had failed to establish that he had any right in the suit land by birth. The finding of fact arrived at by both the Courts below cannot be interfered with in appeal by this Court. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 08, 2009 arya