RSA No.3166 of 2007 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on January 22,2010. Surjit Singh and others - Appellants vs. Gurmit Singh and others --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.B.R.Mahajan,Advocate,for the appellants Mr.Vipin Mahajan,Advocate,for the respondents. Rakesh Kumar Jain, (Oral) The plaintiffs are in second appeal in a suit for declaration in which they have claimed themselves to be the owners in possession of land measuring 7 kanals 16 marlas bearing khasra No.83 R/24, situated at village Mari Buchian, Tehsil Batala, District Gurdaspur. The case set up as per plaint is that land measuring 32 kanals 8 marlas bearing khasra Nos. 83R/23/24, 86R/3,4,5/2, 381, Khewat No.386, 485, situated at village Mari Buchian, Tehsil Batala, was owned by Munsha Singh alias Kartar Singh son of Lachhman Singh son of Hari Singh to the extent of 1/5th share. It was claimed that he had inherited the said property from his forefathers which was Joint Hindu ancestral property of Munsha Singh and his four sons, namely Surjit Singh (plaintiff No.1.); Dalip singh RSA No.3166 of 2007 (O&M) 2 (plaintiff No.2); Gurmit Singh (defendant No.2) and Baldev Singh (since deceased), whose legal representatives are plaintiff Nos. 3 to 6. It is further claimed that sons of Munsha Singh got right, title or interest in the suit land by birth as co-parceners in the Joint Hindu Family ancestral property. Munsha Singh died in the year 1979 or so. After his death, his son Baldev Singh (since deceased) and Gurmit Singh got equal right in the said land ,but defendant No.1. Balwant Kaur, widow of Munsha Singh got mutation of the land in her favour by virtue of a forged Will, though she was entitled to 1/5th share only and defendant No2 (Gurmit Singh) in connivance with defendant No.1.(Balwant Kaur) got the land transferred in the name of defendant No.3. Balbir Kaur, his wife. The said transfer has been challenged, being illegal, null and void. In the written statement, it was denied that the suit land was Joint Hindu Family ancestral property. Defendant No1 succeeded to the estate of Munsha Singh including the land in dispute on the basis of a Will dated 19.4.1978 and got it mutated. Defendant No.1. sold 7 kanals 16 marlas of land bearing khasra No. 83R/24, to defendant No.3 by way of sale deed dated 06.6.1995 and as such, defendant No.3.is exclusive owner in possession of the property in dispute. In the replication, averments made in the written statement were controverted and that of the plaint were reiterated. On the pleadings of the parties, following issues were framed:- 1. Whether the sale deed dated 06.6.1995 in favour of defendant No.3 is illegal, nul and void as alleged ? OPP 2. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPP RSA No.3166 of 2007 (O&M) 3 3. Whether the suit is within limitation ? OPP 4. Whether the plaintiff is entitled for the declaration for the reasons mentioned in the plaint ? OPP Additional issues: 1-A. Whether the suit property is a joint family and ancestral property consisting of Munsha Singh @ Kartar Singh and his sons ? OPP 2-A Whether deceased Munsha Singh had not executed any will an and the same was fabricated by the plaintiff with the consent of their mother i.e. Defendant no.1, if so, its effect ? OPP 5. Relief: In order to prove their case, the plaintiffs examined Surjit Singh, one of the plaintiffs as PW-1; Ujaggar Singh as PW-2; Rattan Singh as PW-3 and Ajit Raj as PW-4 and also led documentary evidence by way of copies of jamabandies Ex.P-1 to Ex. P-4., before closing their evidence. On the other hand, defendants did not lead any evidence. The learned trial Court decided issue Nos. 1,1-A, 2-A and 4 against the plaintiffs whereas issue Nos. 2 and 3 were decided in their favour and as a net result, the suit was dismissed. Learned First Appellate Court upheld the judgment and decree of the learned trial Court vide its judgment and decree dated 21.5.2007. Still aggrieved, the appellants/ plaintiffs have preferred this appeal in which only argument raised by learned counsel for the appellants is with respect to question No.1. which has been framed in para 12 of memorandum of appeal that “whether Joint Hindu Family ancestral property can be disposed of by way of a Will”. RSA No.3166 of 2007 (O&M) 4 Though the aforesaid question has been raised, but learned counsel for the appellants could not satisfy this Court about a finding of fact having been recorded by both the learned Courts below that the property in dispute is non-ancestral. All that has been argued before this Court is that the plaintiffs have placed on record jamabandies for the year 1909 ( Ex.P3); for the year 1934-35 (Ex.P4) and for the year 1991-92 (Ex.P2) in order to prove that the property in dispute is a Joint Hindu family ancestral property. It is also submitted that in the absence of rebuttal to the evidence led by the appellants, the learned Courts below should have presumed that the property in dispute is ancestral and could not have been transferred by way of Will by aforesaid Munsha Singh. On the contrary, learned counsel for the respondents has submitted that all the properties are non-ancestral unless and until proved ancestral by leading cogent evidence and since the plaintiffs have failed to prove that the property in dispute is ancestral, question of law which has been raised does not survive. I have heard learned counsel for both the parties and with their assistance have perused the record as well. It is true that the plaintiffs have led documentary evidence in the shape of jamabandies Exs. P-1 to P-4, and no evidence in rebuttal has been led by the defendants . However, it is equally true that in a Civil Suit, the plaintiff has to stand on his own legs to prove his case. Thus, it is to be seen as to whether the plaintiffs have been successful in proving on record the nature of property as to whether it is Joint Hindu Family ancestral property or self acquired property of deceased Munsha Singh. It is well settled that all the properties are presumed to be non- RSA No.3166 of 2007 (O&M) 5 ancestral or self acquired in the hands of the owner and a heavy and serious onus rests on the person asserting it to be 'not so'. An ancestral property is that which is held by common ancestor coming down by descent to his heirs and it is proved to have been received by a man from a direct male ancestor not exceeding three degrees higher than him. In the present case, the plaintiffs have failed to rebut the presumption in favour of nature of property that it is non-ancestral as no evidence has led in this regard that the property in dispute was inherited by Munsha Singh through his male ancestor up to three degrees. Therefore, in the absence of any cogent evidence, it cannot be held that the property was Joint Hindu Family ancestral property in which coparcener has a right by birth and it cannot be disposed of by way of a Will. In view of the above discussion, I do not find any error in the findings of fact recorded by both the Courts below and in view of the fact that the property in dispute is not proved to be ancestral, question which has been raised by learned counsel for the appellants, does not survive. Hence, the present appeal is found to be without any merit and the same is hereby dismissed in limine, though without any order as to costs. January 22,2010 (Rakesh Kumar Jain) RR Judge