IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4203 of 2009 (O&M) Date of Decision : 22.4.2010 Devinder and another ....Appellants Versus Surender Pal and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. N.D.Achint, Advocate for the appellants. ..... MAHESH GROVER, J. C.M.No.12735-C of 2009 Delay of 117 days in re-filing the appeal is condoned for the reasons mentioned in the application. Application stands allowed. C.M.No.4649-C of 2010 Allowed as prayed for. C.M.No.12736-C of 2009 in/and R.S.A.No.4203 of 2009 The defendants/appellants question the judgments of the learned trial Court dated 23.10.2007 and that of the first Appellate Court dated 28.2.2009. The plaintiffs/respondents and appellants are brothers. The R.S.A.No.4203 of 2009 (O&M) -2- respondents filed a suit alleging that they were entitled to the share of the property of their father which was ancestral in nature. The appellants pleaded that the property was not ancestral and was purchased from the separate funds. Both the Courts below concluded that the property was ancestral in nature and therefore decreed the suit of the respondents holding them entitled to their share in the suit property. The defendants while impugning the said judgments have stated before this Court through the learned counsel appearing on their behalf that the plaint depicted four sets of properties out of which the properties reflected as items A,B and C are ancestral while the property reflected as item D had been purchased from separate funds. He stated that in so far as properties A,B and C are concerned, there is no dispute but the question whether the respondents can be held entitled to the share of the property which was purchased by the father of the appellants from separate funds and which was alienated in their favour by way of a decree. They pleaded that since the property was non-ancestral, the father of the appellants had every right to alienate the suit property which is purchased from separate funds in their favour. It is sought to be contended by the learned counsel for the appellants that the appellants had contributed to the funds while purchasing this property and that the respondents were living separately from the family for the last more than 14 years and therefore had no concern with this property. I have heard the learned counsel for the appellants. The plaintiffs/respondents categorically pleaded the property to be ancestral and also pleaded that the decree which was R.S.A.No.4203 of 2009 (O&M) -3- suffered by their father in favour of the appellants was a result of fraud and collusion. The contention of the appellant that one of the properties reflected at item D in the plaint is non-ancestral and was purchased from the separate funds with their assistance, cannot be accepted for the simple reason that a perusal of the written statement filed by them does not reveal any such pleading to this effect. It is the settled proposition of law that no amount of evidence can be gone into once the foundation for the same has not been laid on the basis of pleading. There is thus little hesitation to say that in the absence of any categoric pleading in the written statement that the property reflected as item D was non-ancestral and purchased from the separate funds of the joint Hindu Family, the evidence to that effect could not be looked into and consequently even the contention which has been raised cannot be appreciated. The same is therefore rejected. In so far as the decrees are concerned, the Courts below have rightly held that there was no family arrangement existing between the parties as the appellants failed to establish it. There is also material to show that in some earlier proceedings a compromise had been effected between the parties wherein the appellants (excluding Devinder) suffered a statement that the decrees obtained by the present appellants were obtained in an illegal manner and that there was no family settlement. This when coupled with the fact that the appellants failed to establish any family settlement on the basis of which the earlier decrees were suffered, I am of the considered opinion that the Courts have righty held that the said decrees Exhibits D-4 and D-8 were the result of fraud and collusion R.S.A.No.4203 of 2009 (O&M) -4- and consequently could not bind the present respondents in order to deprive them from their share in the suit property. There is no infirmity in the impugned judgments and the present appeal being without any merit is dismissed. Consequently, the stay application is also dismissed. 22.4.2010 (MAHESH GROVER) JUDGE dss