IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4943 of 2011 Date of decision: December 19, 2011 Gurtej Singh .. Appellant Vs. Babu Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Daldeep Singh, Advocate for the appellant. A.N. Jindal, J The plaintiff- appellant having lost before both the courts, in a suit for declaration and permanent injunction, has preferred this regular second appeal. He is none else but the son of the defendant Babu Singh. The plaintiff- appellant (herein referred as, 'the plaintiff') sought declaration to the effect that the name of the defendant No.1 is recorded as owner to the extent of 1/3rd share in the land measuring 248 kanals 6 marlas situated at village Kot Dharmu, as fully detailed in the heading of the plaint. The suit land is ancestral co-parcenary property, therefore, he and the defendants No.2 to 4 being the sons and daughter of Sukhbir Singh son of Babu are the owners to the extent of 1/12th share each. This share was given by the defendant No.1 to him in a family partition. The sale made by Babu Singh qua his 1/12th share dis-entitles him to raise any claim over any part of the suit land. The defendant is addicted to vices and is pleasure loving person . He has already sold the land of his share without any legal necessity. Thus, the plaintiff also sought permanent injunction restraining the defendant No.1 from alienating any part of the suit land. The defendant No.1 while contesting the suit has refuted the claim of the plaintiff by submitting that neither the plaintiff is owner of 1/12th share nor any family partition as alleged has taken place. The property is his self- acquired property. He being the owner of the suit land is in possession of the same and he could alienate any part of the property without any legal necessity. The sale already made by him is for legal R.S.A. No. 4943 of 2011 -2- *** necessity. No replication was filed. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for?OPP 2. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 3. Whether the suit is not maintainable in the present form?OPD The trial court framed the following additional issues vide order dated 8.11.2010 : 3(a) Whether 1/3 share of the total land measuring 248 kanal 6 marlas is ancestral and Joint Hindu Family co- parcenary property in hands of defendant No.1?OPP 3(b) Whether the plaintiff is entitled to declaration as prayed for?OPP 3(c) Whether the defendant No.1 is entitled to special costs u/s 35A CPC?OPD 4. Relief. Both the parties led evidence. The trial court while holding that there is no evidence worth the name on the record to hold that the property is ancestral coparcenary and joint hindu family property, dismissed the suit of the plaintiff on 9.11.2010. The first appellate court also decided against the plaintiff. Heard. Admittedly, the plaintiff and the defendant No.2 are the real sons of defendant No.1. The defendants No.3 and 4 are the wife and daughter of other son of Babu Singh. Though, both the courts below held that the property is not ancestral coparcenary joint hindu property, yet, to my mind, the suit was liable to fail solely on the ground that during the life time of the father of the plaintiff and the defendants No. 2 to 4, he could not claim any share in the property. He could claim only right of joint possession and common enjoyment. The share in the joint hindu family R.S.A. No. 4943 of 2011 -3- *** property continue to increase or decrease with the death or birth of the coparceners. No coparcener could claim any definite share in the property. At the same time, father being the Karta of the family has every right to sell the land for legal necessity and remedy with the plaintiff is to challenge the same on the ground that it was without any legal necessity or benefit of the estate. As such, this suit for declaration was bound to fail on the aforesaid grounds alone. No substantial question of law arises in this case for determination In the absence of any perversity or arbitrariness, no grounds for reversal of the judgments are made out. Dismissed. December 19, 2011 (A.N. Jindal) deepak Judge