IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4895 of 2009 Date of Decision : December 23, 2009 Diwana alias Diwan Chand ....Appellant Versus Ram Kumar and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ajit Sihag, Advocate T.P.S. MANN, J. Suit filed by the plaintiff-appellant for declaration and possession was dismissed by Additional Civil Judge (Senior Division), Hisar on 23.11.2007. Aggrieved of the same, he filed the first appeal, which was also dismissed by Additional District Judge, Hisar on 17.9.2009. He is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. The plaintiff-appellant filed the suit for seeking possession of 1/4th share of agricultural land measuring 135 kanals 15 marlas situated at village Sulkhani, being legal heir of deceased Aad Ram, whereas defendants No.1 to 9 were owners to the extent of remaining 3/4ths share in the same. He also sought declaration that the judgment and decree dated 8.9.1982 passed in civil suit titled as 'Ram Kumar etc. Versus Aad Ram etc.' as well as entries in the revenue records on the basis of the same were illegal, non est, without jurisdiction, based upon fraud and misrepresentation and, therefore, liable to R.S.A. No.4895 of 2009 -2- be set aside and with a further declaration that sale of land by defendants No.3 to 5 in favour of defendant No.10 on 12.5.1987, by defendant No.1 in favour of defendant No.11 on 23.5.1987, besides sale of land in favour of defendant No.17 as well as defendants No.12 to 16 were illegal, null and void and not binding upon his rights. He also sought consequential relief of permanent injunction for restraining the defendants from alienating or transferring the suit land in any manner. He based his claim upon the fact that his father Aad Ram was owner in possession of the suit land. The plaintiff and defendants No.1, 2 and 9, Ram Kumar, Amar Singh and Darya were the sons of Aad Ram, since deceased, who was having a joint Hindu family and, thus, governed by Hindu law. Aad Ram was owner to the extent 8 acres 4 kanals of land in village Bugana, which was his coparcenary and ancestral property. He had purchased the suit property out of earnings from the ancestral land and in this manner the suit property was also coparcenary joint Hindu family property. Defendants No.1 to 8 managed to obtain judgment and decree dated 8.9.1992 in civil suit titled 'Ram Kumar etc. Versus Aad Ram etc.' and on its basis also got the revenue records changed in their favour. Subsequent sales made by various defendants were also illegal, null and void and, therefore, not binding upon his rights as he was owner to the extent of 1/4th share. Though he was in possession of his share as co-owner in the suit land the defendants came to the suit property and forcibly occupied the same by proclaiming their title over the said property on the basis of the aforementioned judgment and decree. Hence, he filed the present suit. While opposing the suit the defendants asserted that the suit land was owned by Aad Ram, who died on 1.11.1986. The plaintiff never R.S.A. No.4895 of 2009 -3- challenged the decree dated 8.9.1982 during the life time of Aad Ram. The suit had already become time barred, having been filed after 18 years of the decree. Since the suit property was neither ancestral nor joint Hindu family property of Aad Ram, who was its exclusive owner, therefore, the plaintiff had no right in the same as a coparcener. Deceased Aad Ram himself entered into a family settlement with defendants No.1 to 8, who were his sons and his brother's sons and in pursuance of the said settlement he got the aforementioned judgment and decree passed by himself appearing in the Court and making a statement in that respect. No fraud was played upon him as alleged by the plaintiff. On the basis of the said judgment and decree, defendants No.1 to 8 became owner of the suit property which was, thereafter, sold to the other defendants, who were bonafide purchasers for consideration. They, accordingly, prayed for dismissal of the suit property. After hearing learned counsel for the parties and going through the evidence available on the record, learned Courts below held that the suit land was neither ancestral nor coparcenary property in the hands of Aad Ram. He had purchased some part of the suit property from Narayan Mal etc. for consideration of Rs.30,000/- on 25.5.1981 and some from Parbhu Ram for consideration of Rs.13,000/- on 25.5.1981, while the remaining land was purchased from Ram Rattan etc. through a suit of pre-emption. Since it was his self acquired property, Aad Ram had every right to dispose of the same at his own free will. He entered into a family settlement with two of his sons, i.e. Ram Kumar and Amar Singh, besides his brother's sons, which was incorporated through decree dated 8.9.1982. The plaintiff had no pre-existing right in the suit property and hence had no right to challenge the testamentary R.S.A. No.4895 of 2009 -4- disposition of the same made by his father. Accordingly, the suit was dismissed. No material is available on the record from which it may be even inferred that the suit property was purchased by Aad Ram from out of the earnings of the ancestral land. It has been rightly held that the suit property was self acquired property of Aad Ram. Said Aad Ram had entered into a family settlement, whereunder he agreed to transfer the suit land in favour of his two sons, namely, Ram Kumar and Amar Singh, besides his brother's sons. This led to the filing of the civil suit by Ram Kumar and others in which Aad Ram appeared and suffered a statement in favour of the plaintiffs therein. Accordingly, the civil suit filed by Ram Kumar and others was decreed on 8.9.1982. After being declared owner of the suit property, Ram Kumar and others effected sale transactions in favour of the other defendants. No fault can be found with the same. The decree dated 8.9.1982 was also challenged by the plaintiff on account of its non-registration. This objection cannot be sustained in view of the fact that the decree had been obtained on the basis of a family settlement arrived at between the members of the family. It did not create any right, title or interest for the first time. Therefore, it did not require any registration. It is not in dispute that by virtue of the family settlement Aad Ram, since deceased, had also suffered a separate decree dated 15.4.1983 in favour of the plaintiff in respect of 12 kanals of land. The judgment and decree dated 8.9.1982 passed in civil suit titled as 'Ram Kumar etc. Versus Aad Ram etc.' was challenged by the plaintiff R.S.A. No.4895 of 2009 -5- by filing the present suit on 11.5.2000. Such a suit for possession on the basis of the title was required to be filed within 12 years. Therefore, the suit itself was time barred. In view of the above, no case for interference in the impugned judgments and decrees is made out. The findings of facts cannot be reversed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as formulated by learned counsel for appellant, arises for determination. The appeal is, therefore, dismissed in limine. ( T.P.S. MANN ) December 23, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO