RSA No.1014 of 1980 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1014 of 1980 (O&M) Date of decision: 31.3.2010 Ajmer Singh (died) through LRs and another ............Appellants Versus Nachhattar Singh (died) through LRs and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Dheeraj Jain, Advocate for the appellants. Mr. S. N. Chopra, Advocate for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. This second appeal has been filed by the defendants/appellants challenging the judgment and decree dated 12.1.1979 passed by the Addl. Sub Judge (IInd Class) Bassi Pathanan, Distt. Patiala (trial Court) and judgment and decree dated 7.4.1980 passed by the District Judge, Patiala/first Appellate Court. 2. The brief facts of the present case are that the plaintiffs/respondents No.1 and 2 filed suit for possession against RSA No.1014 of 1980 (O&M) 2 defendants No.1 and 2, impleading defendants No.4 and 5 as proforma defendants. As per the plaint following is the pedigree table:- CHUHRA Jeet Singh Amra Kaula Bhagoo Hiara Singh Sobha Nathu Ralla Ratno (Died issueless) (Died issueless) Jewa Bakhtaur Singh Pakher Singh Dalip Singh (Died issueless) Sital Singh Gurcharan Arjan (Defdt. No.5) Singh Singh (Defdt.No.4) (Defdt.No.3) Nachhattar Singh Lakhmir Singh AjmerSingh Baldev Singh (Plaff. No.1) (Plaff. No.2) (Defdt. No.1) (Defdt.No.2) 3. As per the plaintiffs, Pakher Singh, father of the plaintiffs and defendants No.1 and 2, expired on 20.10.1974 . He had executed one registered Will on 4.6.1974 bequeathing his entire property in favour of the plaintiffs; Nathu, a real brother of Ralla (father of the plaintiffs) died issueless; Smt. Ratno also expired issueless; Pakher Singh had inherited the property from his father Ralla as well as from his uncle Nathu and aunt Ratno; entire property in the hand of Pakher Singh was his self acquired property; defendants No.1 and 2 and Pakher Singh having criminal cases against each other; plaintiffs used to serve their father Pakher Singh, hence, Pakher Singh executed Will in favour of the plaintiffs. 4. Defendants contested the suit and alleged that property in RSA No.1014 of 1980 (O&M) 3 the hand of Pakher Singh was coparcenary property and in any case was Joint Hindu Family ancestral property and Pakher Singh was not competent to execute the Will in favour of the plaintiffs, otherwise also genuineness and validity of Will was also denied and challenged. 5. Learned trial Court has framed following issues:- “1. Whether Pakher Singh, deceased, executed a valid Will in favour of the plaintiff?OPP. 2. Whether the suit property is a part of the co-parcenary property, if so, to what effect?OPD. 3. Relief.” 6. Learned trial Court, on the basis of statements of the attesting witness and other witnesses and material available on record, found Will dated 4.6.1974 having been executed by Pakher Singh in favour of the plaintiffs as genuine and valid Will. However, learned trial Court, while recording finding on issue No.2, held that property inherited by Pakher Singh from his father Ralla was ancestral property which was to the extent of 1/4th share to the disputed property, hence, Pakher Singh was not competent to execute Will in favour of the plaintiffs more than his own share (1/5th share) in the property inherited by him from his father. Learned trial Court having observed as above, decreed the suit of the plaintiffs for the possession except 2/5th shares of a portion of the suit land inherited by deceased Pakher Singh from his father, Ralla. 7. Both the parties filed two separate appeals before the first Appellate Court. Plaintiffs challenged the dismissal of their suit for the 2/5th shares of a portion of the suit land inherited by deceased RSA No.1014 of 1980 (O&M) 4 Pakher Singh from his father while defendants challenged the judgment of the trial Court against the partial decree passed in favour of the plaintiffs. Learned District Judge heard both the appeals together and allowed appeal of the plaintiffs and dismissed the appeal filed by the defendants. Learned first Appellate Court has placed reliance on the judgment of the Lahore High Court reported in AIR 1932 Lahore 636 in the matter of Raj Kishore V. Madan Gopal and on the judgment of this Court in the matter of Puran Chand and others v. Gurcharan Singh and another reported in 1967 PLR 706. Learned first Appellate Court has held that entire property is not ancestral property. Appellate Court has further observed that it has not been shown as to what khasra numbers came to Pakher Singh from his father, Ralla, and what from his uncle Nathu and from Smt. Ratno; so entire land would assume the shape of self acquired property of Pakher Singh. 8. Feeling aggrieved, defendants have preferred present second appeal. 9. In the present second appeal, one substantial question of law is suggested by learned Counsel for the appellants; As to whether, when lands are so mixed up that the ancestral and non-ancestral portions cannot be separated, entire land would be regarded as non-ancestral land? 10. Substantial question of law suggested by learned counsel for the appellants is no more res integra. It is settled principle of law that if question raised is no more res integra then it would not amount to substantial question of law. RSA No.1014 of 1980 (O&M) 5 11. On being asked, learned Counsel for the appellants could not point out the separate khasra numbers inherited by Sh. Pakher Singh from his father Ralla as well as from his uncle Nathu and as well as from his aunt Smt. Ratno. Both the Counsel conceded that properties are mixed up and not separable. Both the Counsel fairly stated that after consolidation operation, properties inherited by Pakher Singh from all the three persons i.e. father, uncle and aunt now cannot be separated. 12. Substantial question of law suggested by learned Counsel for the appellants came for consideration before the Hon’ble Apex Court in the matter of Mara and others v. Mst. Nikko alias Punjab Kaur and another reported in AIR 1964 Supreme Court 1821. The Hon’ble Apex Court in the matter of Mara (supra) in paragraph No.7 has held as under:- “7. Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and non-ancestral portions cannot be separated they must be regarded as non-ancestral, unless it is shown which are ancestral and which are not. This was laid down by the Privy Council in Attar Singh v. Thakar Singh, 35 Ind. App. 206 (PC). It was held by Mr. Justice Kapur (as he then was) in Indar Singh v. Gulzara Singh, AIR 1951 Punj 345 basing himself upon Saif-ul-Rahman v. Mohammad Ali Khan, ILR 9 Lah 95: (AIR 1928 Lah 285) and Jagtar Singh v. Raghbir Singh, ILR 13 Lah 165: (AIR 1932 Lah 85) that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent…..” 13. In view of the dictum of the Supreme Court law is well RSA No.1014 of 1980 (O&M) 6 settled that if lands are so mixed up that the ancestral and non- ancestral portion cannot be separated then they must be recorded as non-ancestral unless it is shown which are ancestral and which are not. Land ceases to be ancestral property if it comes into the hands of an owner otherwise than by descent. 14. In view of the admitted position that property is mixed up and cannot be separated in portions inherited from Ralla, Nathu and Smt. Ratno, I find that substantial question of law suggested by learned Counsel for the appellants in fact is no more res integra and hence does not require any consideration by this Court. View taken by learned District Judge/first Appellate Court is a correct view in view of the judgment of the Hon’ble Supreme Court (supra). No interference is called for. 15. The appeal being devoid of merit, must fail, and the same is dismissed with costs through out. 16. All the civil miscellaneous applications pending are also disposed of accordingly. (ALOK SINGH) 31.3.2010 JUDGE ashish