IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2896 of 2010 (O&M) Date of decision: 1st August, 2011 Mukhtiar Singh and others … Appellants Versus Hari Om and another … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Deepika Verma, Advocate for the appellants. Mr. Sudhir Hooda, Advocate for the respondent No.1. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The plaintiffs having failed in two rounds of litigation have filed present regular second appeal. They had instituted a suit for declaration and consequential relief of joint possession. They prayed that the sale deed No.1796 dated 23rd December, 2005 executed in favour of defendant No.1 by defendant No.2 be declared as illegal, void, sham, inoperative, ineffective and a nullity, as the sale was not effected for consideration and legal necessity, and the same was void qua the rights, title and interest of the plaintiffs. They further sought a decree for joint possession of 80/2309 shares in Khewat No.171 Khatoni No.179 measuring 115 Kanals 9 Marlas in the suit land mentioned in para No.2 of the plaint. It was pleaded in the suit that Ishwar-defendant No.2 was uncle of plaintiffs No.2 to 4 and cousin of plaintiff No.1, and the suit property was an ancestral property of the plaintiffs and defendant No.2. The suit further stated that defendant No.2 was owner in possession of the suit property, details and description whereof were given in para Regular Second Appeal No.2896 of 2010 (O&M) No.2 of the plaint. In support thereof, jamabandi for the year 2002-03 was annexed with the suit. It was stated that defendant No.2 sold his share, i.e. 4 Kanals in the land measuring 115 Kanals 9 Marlas out of the suit land mentioned in para No.2 of the plaint for an ostensible consideration of Rs.1,18,000/- vide a registered sale deed dated 23rd December, 2005 in favour of defendant No.1. It was further stated that since plaintiffs and defendant No.2 constituted a Joint Hindu Family, defendant No.1 was a stranger and that the sale was without any consideration and not for the benefit of estate. Various grounds for challenge to the sale deed were given in para No.5 of the plaint, which read as under: “(i) That the plaintiffs are co-parcener and acquired title and interest in the land sold, by birth and the suit land is a co-parcenary property of the plaintiffs. (ii) That the land sold was of Joint Hindu Family property. (iii) That the sale has been made without consideration and legal necessity. (iv) That the sale has been made not for the benefit of the estate and for the family. (v) That the defendant No.1 neither made any inquiry regarding the legal necessity nor he showed in the sale deed that the amount of sale was utilized by the defendant No.2 for any such purpose. (vi) That the alienation is without consent of the plaintiffs who are also co-sharers in the suit land. (vii) That the property was sold for immoral purpose. The defendant No.2 is drug-addict.” The above facts have been taken from the plaint produced for a perusal of this Court by counsel for the appellants-plaintiffs. 2 Regular Second Appeal No.2896 of 2010 (O&M) Defendant No.1 to the suit, purchaser from defendant No.2 filed reply. He denied the relationship of plaintiff No.1 with defendant No.2 as also with plaintiffs No.2 to 4. Defendant No.1 specifically stated as under: “6. … … … It does not amount clog on the right of the plaintiffs in the same Khewat and they are fully entitled to get the share separated by partition also.” Defendant No.2 raised a plea that the suit land was not an ancestral property. He further stated that since he had to repay the loan of Cooperative Bank, therefore, he sold his share in the suit property. Written statements filed by defendants No.1 and 2 have also been produced by counsel for the appellants for perusal of this Court. The trial Court had drawn the following issues: “1. Whether the suit property as detailed in para No.2 of the plaint is the ancestral property of the parties and formed Hindu family property? OPP 2. Whether the sale deed dated 23.12.2005 executed by defendant No.2 is illegal, null and void and not binding on the plaintiff? OPP 3. Whether the plaintiffs are entitled for a decree of joint possession as prayed for? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Relief.” The trial Court decided issue No.1 in favour of the plaintiffs holding that the suit property was ancestral. It further held that the sale deed executed by defendant No.2 in favour of defendant No.1 was legal. Furthermore, the Court observed that the plaintiffs had challenged the 3 Regular Second Appeal No.2896 of 2010 (O&M) sale deed in which sale consideration of Rs.1,18,000/- was paid, but proper Court fee was not affixed. The lower appellate Court reversed the findings returned by the trial Court qua issue No.1 and held that it is not proved that the suit land was ancestral. However, it held that the plaintiffs had no locus- standi to challenge the sale deed. The lower appellate Court concluded as under: “11. In nutshell, thus, the suit land being not proved to be ancestral, the plaintiffs have no locus-standi to challenge the sale and also to the effect that the sale deed was proved to be executed for legal necessity and the recital in the sale deed about the payment of sale consideration of Rs.1,18,000/- by the vendee to the vendor before the Sub Registrar is sufficient to hold that the amount of sale consideration was paid. Thus, by taking from any angle, I do not find any merit in the appeal and the same is hereby dismissed. Decree sheet be prepared accordingly.” Ms. Deepika Verma, Advocate appearing on behalf of the appellants, has relied upon ‘Gajara Vishnu Gosavi v. Prakash Nanasahed Kamble & others’ 2010(1) Civil Court Cases 598 to say that the undivided share of a coparcener can be a subject matter of sale/transfer but the possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds. Mr. Sudhir Hooda, Advocate appearing for the respondents, has stated that in the suit nowhere it has been stated that defendant No.1 was in possession of a portion of the Khewat, or defendant No.1 in pursuance of the sale has been put in actual physical possession of any portion of the joint Khewat. 4 Regular Second Appeal No.2896 of 2010 (O&M) However, Ms.Verma has stated that in the plaint, it has only been stated that defendant No.2 was owner in possession of his share out of the total land. As rightly pointed out by counsel for the respondents since there was no pleading to the effect that after the sale defendant No.1 has obtained possession of any specific portion of the land, the courts below have held that defendant No.1 has become co-sharer in the joint Khewat. It is also held that defendant No.2 was well within his rights to effect sale in favour of defendant No.1. Hence, the judgment relied upon by counsel for the appellants is not attracted on the facts of this case. Both the courts below have also given credence to the fact that no case was registered against defendant No.2 for use or consumption of narcotic drugs. Furthermore, the plea that he was a drug addict on appreciation of the facts was not believed. The courts have also given credence to the fact that the sale was to be made for making payment of the loan to Cooperative Bank. Concurrent findings of fact have been returned by both the courts below after appreciating the evidence. Therefore, no ground is made out to cause any interference in the judgments rendered by the courts below, especially when no question of law, much less a substantial one, has been raised for consideration of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 1, 2011 rps 5