R.S.A No. 3151 of 2008 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M No.9348-C of 2008 and R.S.A No. 3151 of 2008 Date of decision : August 07, 2009 Darshan Lal ...... Appellant (s) v. Balwant Rai and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Ms. Urmil Gupta, Advocate for the appellant. Mr. L.N.Verma, Advocate for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This appeal has been filed against judgment of the learned lower Appellate Court modifying that of the trial court. The admitted facts are that the property in dispute measuring 45 Kanals 4 Marlas originally belonged to Mehanga Ram . It was inherited ultimately by his three sons who partitioned the same, thus leaving 13 Kanals 14 Marlas in the hands of each. Thereafter, Om Parkash, one of the sons suffered a decree of his entire land viz., 13 Kanals 14 Marlas which he had obtained from Mehanga Ram and certain other property purchased by him in favour of his brother. R.S.A No. 3151 of 2008 (O&M) ::2:: The sons of Om Parkash filed the instant suit claiming that the said consent decree was inoperative against their rights. The trial Court dismissed their suit. However, the learned lower appellate Court partly allowed their appeal and held that since 13 kanals 14 marlas of land was ancestral in the hands of Om Parkash, he would be owner of only 1/4th , the rest being the share of his three sons. Consequently, the alienation of 3/4th share of the ancestral land measuring 13 kanals 14 marlas viz. 10 kanals 5.1/2 marlas was set aside by the learned lower appellate Court. The following questions have been proposed by the learned counsel:- i) “Whether the judgment and decree dated 21.8.2008 passed by learned Addl. District Judge, Sirsa is liable to be set aside? OPP ii)Whether judgment and decree dated 3.10.2005 titled as Balwant Rai and others v. Darshan Lal passed by Ld. Trial Court in favour of appellant/respondent is correct or not? iii)Whether judgment and decree dated 6.5.1998 passed in civil suit No.208/98 titled as Darshan Lal v. Om Parkash is correct or not? iv)Whether the suit land is ancestral in the hands of Mehnga Ram? OPP v) Whether there was no family settlement between the parties? OPP” It would be seen that questions No.(iv) and (v) are pure questions of fact. Counsel for the appellant has only addressed arguments R.S.A No. 3151 of 2008 (O&M) ::3:: on question No. (iv) but has not been able to persuade me that the findings regarding the property being ancestral in the hands of Om Parkash are either based on no evidence or are based on such misreading of evidence as would render the same perverse. No arguments have been addressed on question No. (v). Questions No. (i) to (iii) are over-lapping. Learned counsel for the appellant has relied upon S.P.S.Balasubramanyam vs Suruttayan alias Andali Padayachi and others, 1994(1) SLJ 565 to contend that on partition, the share of Om Parkash became self acquired property and he could, thus, transfer it to his brother Darshan Lal. She has relied upon paragraph 6 of the said judgment which is to the following effect :- “ 6. As regards the deed of settlement executed by Chinathambi it having been found that Chinathambi got his share by way of partition decree the ancestral or coparcenary nature of property came to an end and Chinathambi became its exclusive owner. Consequently he could execute a deed of settlement in favour of his wife and children. Since Ramaswamy derived his title from the settlement deed it was valid and he could convey his interest in favour of the appellant.” However, the facts leading to the exposition of law in that case is that Chinathambi had two wives, one of whom did not have any children and he suffered a decree in favour of his second wife and children. The remaining brothers had challenged that alienation. It was in those circumstances that the above quoted observations were made. In the present case, the position is different. Here it is the sons R.S.A No. 3151 of 2008 (O&M) ::4:: (class-I heirs) who are claiming coparcenary interest through the father, and are challenging the alienation made in favour of reversional coparceners (class-II (II) heirs). In view of the above, the judgment in S.P.S.Balasubramanyam's case (supra) is clearly distinguishable. Consequently, this appeal as also the application for stay are dismissed with no order as to costs. August 07, 2009 ( AJAY TEWARI ) `kk' JUDGE