Regular Second Appeal No. 4036 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 4036 of 2007 Date of Decision: 22.12.2008 Rajinder Singh and Others …Appellants Versus Harpal Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Raghuwinder Singh, Advocate for the appellant. Mr. Avnish Mittal, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) This is plaintiffs’ second appeal. They had filed a suit for declaration to the effect that they are co-sharer in the joint possession of agricultural land measuring 18 bighas of land, details and description has been given in the plaint. They further prayed that land in dispute being a Joint Hindu Family and Coparcenary property, the judgment and decree dated 27.10.1995 passed by Mr. Ashok Kumar, PCS, Sub Judge Ist Class, Rajpura in Civil Suit No. 1322 dated 14.8.1995 is wrong and illegal. Bhopal Singh, defendant No.7, had four sons namely Joginder Singh, Mewa Singh, Rajinder Singh and Yadwinder Singh. Suit was filed by Rajinder Singh and Yadwinder Singh and their sons. Defendants are Regular Second Appeal No. 4036 of 2007 2 other two sons of Bhopal Singh namely Joginder Singh and Mewa Singh and their children. The plaintiffs averred in the suit that the suit property is a joint Hindu Family Coparcenery property. Plaintiffs were aggrieved against the judgment and decree dated 27.10.1995, which according to them was result of fraud and misrepresentation and is not admissible in evidence being unregistered. A written statement was filed in which it was projected that the plaintiffs and defendants are separate in mess, agricultural land and they are living separately. Bhopal Singh is not Karta of Joint Hindu Family Property. Bhopal Singh had died since long after partition of the property. Bhopal Singh had separated brothers. The properties were distributed by Bhopal Singh to the plaintiffs and defendants. It was further stated that defendants No.1 to 4 and Bhopal Singh separated vide a family arrangement which had been recognized vide decree passed in Civil Suit No. 1322 dated 14.8.1995. After conclusion of pleadings, the following issues were framed:- 1. Whether the plaintiffs are co-owners in joint possession of the land in dispute? OPP 2. Whether the land in dispute is joint Hindu Family Coparcenary Property of the parties? OPP 3. Whether the judgment & decree dt. 27.10.1995 is illegal and liable to be set aside? OPP 4. Whether the plaintiff is entitled to Regular Second Appeal No. 4036 of 2007 3 declaration as prayed for? OPP 5. Whether the plaintiff is entitled to injunction as prayed for? OPP 6. Whether the plaintiff has no locus standi? OPD 7. Whether the suit is not maintainable as prayed for? OPD 8. Whether the plaintiff is estopped from filing the present suit? OPD 9. Whether plaintiff has no cause of action? OPD 10. Whether the suit is bad for non-joinder of necessary parties? OPD 11. Whether the suit is barred by law of limitation? OPD 12. Relief. Parties led their evidence. Learned trial Court held that defendants had produced Bahi Writings Ex.D1 to Ex.D4 to prove that the suit land was already partitioned between the plaintiffs and defendants by these writing. Defendants also relied upon Jamabandi Ex.D5 to show that the plaintiffs have separate land. Learned trial Court also examined the arguments whether decree dated 27.10.1995 suffered by Bhopal Singh in favour of defendants No.1 to 4 is a result of fraud and misrepresentation or not. It was also held that family settlement took place between the parties and Regular Second Appeal No. 4036 of 2007 4 has been admitted that partition was reduced into writing. Therefore, on basis of the same defendants had a pre-existing right at the time of filing of the earlier suit. Learned trial Court concluded as under:- “13. So from my above discussion, I come to this conclusion that the suit land is not joint Hindu family Coparcenary property. Plaintiffs are not co-owners in joint possession of the suit land and decree dt. 27.10.95 is legal and valid decree. Plaintiffs are also claiming share in the electric tube well connection No. WS-385, WS 2425 and SP84/138. However Hardial Singh LDC PSEB Ghanaur while appearing in the Court has produced record that the electric connection No. SP-84/138 was disconnected due to non payment of electric charges which was in the name of Bhopal Singh. The electric connection No. WS-385 was also disconnected due to non payment of electric charges by Bhopal Singh. Electric Connection No. WS-2425 was issued in the name of Manjit Singh s/o Mewa Singh. Therefore, these 2 connections are already disconnected and the third connection stands in the name of Manjit Singh. As such plaintiffs have no link or concern with these connections also. Therefore, all these issues are decided against the plaintiffs and in favour of the defendants”. Aggrieved against the same, an appeal was filed by the plaintiffs. Learned lower Appellate Court held that writing Ex.D1 to D4 were never incorporated in jamabandies, therefore, no partition of properties can be held to have taken place, though the joint status of the Regular Second Appeal No. 4036 of 2007 5 family had come to an end as in writing Ex.D1, separate houses were given to all the four sons and they were separated by Bhopal Singh. It further held that joint status of the parties had already come to an end, therefore, transfer of land in favour of sons of Joginder Singh and Mewa Singh is nothing but acceleration of succession and Bhopal Singh was competent to transfer his share. Learned lower Appellate Court further held that the suit was filed during the life time of Bhopal Singh. Therefore, the plaintiffs could not claim joint ownership and possession of the property and altered findings on issue No.1 in favour of the plaintiffs. However, it concurred with the findings of learned trial Court that Bhopal Singh was competent to transfer the land in favour of the defendants. On this issue, a concurrent finding of fact has been given. It has been urged before me that the findings of learned trial Court that held Ex.D1 to D4 were the family partition, and this finding was reversed by learned lower Appellate Court, therefore, the suit of the plaintiffs was to be allowed. Be as it may, both the Courts below held that during his life time, Bhopal Singh was competent to transfer his share. Therefore, transfer of his share by Bhopal Singh in favour of defendants cannot be challenged by the plaintiffs. Therefore, on the facts and circumstances of the case, no substantial question of law arise. Therefore, there is no merit in the present appeal and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge December 22, 2008 “DK”