RSA No.1096 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1096 of 2009 (O&M) Date of decision: 2.3.2010 Mohinder Singh and ors. ......Appellant(s) Versus Des Raj and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rajendar Chhokar, Advocate for the appellants. Rakesh Kumar Garg, J.(Oral) This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby suit for declaration with consequential relief of permanent injunction and in the alternative for possession filed by the appellants, was dismissed. As per the averments made in the plaint, the plaintiff- appellants were the sons of Des Raj defendant No.1 and constitute a Joint Hindu Family. Defendant No.1 was the Karta of said Joint Hindu Family and was owner in possession of 2973/303448 share of agricultural land bearing Khewat No.1336 measuring 15172 Kanals 8 marlas, situated within the revenue estate of Mauja Sohana, Tehsil Sohna, District Gurgaon. The suit land was ancestral, coparcenary property of joint Hindu Family. As coparceners, the plaintiffs were joint owners in possession of the land. Being Karta of Joint Hindu Family, defendant No.1 was described as owner of land in question in the revenue record. Defendant No.2 told the plaintiffs that he had become the owner of the suit land as defendant No.1 had relinquished his proprietary right as co-sharer in respect of the suit land in his favour vide document dated 13.1.2000. The said Tarknama RSA No.1096 of 2009 (O&M) 2 or relinquishment deed even if found to be executed by defendant No.1 did not transfer the suit land in favour of defendant No.2. The suit land being ancestral/coparcenary property of the Joint Hindu family could not be alienated by defendant No.1 except for valuable consideration and legal necessity. A legal necessity did not exist to justify alienation of the suit land. Defendants No.2 was requested to admit the claim of the appellants. However, he refused to do so. Hence, the suit. In response to the notice, defendant No.1 did not contest the suit and was proceeded against ex parte. Defendant No.2 contested the suit raising various preliminary objections. On merits, it was denied that the plaintiffs constituted a joint Hindu family with defendant No.1. It was also denied that defendant No.1 was Karta of alleged joint Hindu family. It was further denied that the joint Hindu Family was owner in possession of the suit land. It was submitted that defendant No.1 was co-owner in possession to the extent of 2973/303448 share in Khewat No. 1336 measuring 15172 kanals 8 marlas. It was further stated that the suit property was self acquired property of defendant No.1 and he had every right to deal with the same in any manner. The plaintiffs were never in joint possession of the suit land as co-parceners as alleged. Defendant No.1 executed relinquishment deed dated 13.1.2000 and got the same registered in favour of defendant No.2 and he became the owner of the suit land on the basis of the above said deed. The aforesaid deed was legal and valid. It was further submitted that defendant No.2 paid a sum of Rs.3,06,591/- to defendant No.1 who also executed a receipt dated 13.1.2000 in token of having received the above said amount in the presence of witnesses and possession of the land in question was delivered to defendant No.2. It was further stated that on the date of execution of the relinquishment deed, defendant No1 was in need of RSA No.1096 of 2009 (O&M) 3 money. Rests of the contentions were denied and prayer for dismissal of the suit was made. On the pleading of the parties, following issues were framed:-. “1. Whether suit land is ancestral coparcenary property of the Joint Hindu Family of plaintiffs and defendant No.1 as alleged? OPP 2. Whether plaintiffs are in joint possession of the suit property as coparceners? OPP 3. Whether Tark of ownership rights by defendant No.1 qua land in suit vide Tarknama dated 13.1.2000 did not amount to transfer of the land in suit to defendant No.2? OPP 4. Whether Tark has been made without valuable consideration and legal necessity was null and void against the plaintiffs? OPP 5. Whether plaintiffs have got no locus standi to file the present suit? OPD 6. Whether suit of the plaintiffs is not maintainable in the present form? OPD 7. Whether the plaintiffs have got no cause of action to file the present suit? OPD 8. Whether the plaintiffs are estopped from filing the present suit by their own act, conduct? OPD 9. Whether the suit is collusive between the plaintiffs and defendant No.1? OPD 10. Relief.” Issue No.1 to 4 were answered by the trial Court against the RSA No.1096 of 2009 (O&M) 4 plaintiffs. Issues No.5 to 7 were also decided against the plaintiffs. Issue No.8 was decided against the defendants being not pressed. Issue No.9 was also answered against the plaintiffs and the suit was dismissed. While deciding issue No.1, the trial Court found that Jamabandis produced on record do not pertain to suit land and thus, do not prove the fact that the parties constitute joint Hindu family or the property in dispute was ancestral and it is not established on record that the property devolved upon defendant No.1 in what manner and a finding of fact was recorded that property was not ancestral. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, an appeal was filed by the plaintiffs before the Lower Appellate Court. During the pendency of the appeal, application for additional evidence was filed by the plaintiffs and report dated 28.7.2008 of Tehsildar was sought to be proved. The aforesaid application was opposed by the respondents. The Lower Appellate Court found that the appellants were having the knowledge with regard to the contents of the report of Tehsildar sought to be produced by way of additional evidence when they were leading affirmative evidence in the suit and no attempt was made in this regard at that time and it was only to over come the lacuna as found by the adverse findings by the trial Court, the application was filed and thus, the aforesaid application for additional evidence was dismissed. The Lower Appellate Court on reappraisal of evidence recorded a finding of fact that the suit land was not proved to be ancestral in the hands of Des Raj-defendant No.1 at the time of execution of relinquishment deed Ex.D1 and therefore, it was not obligatory on the part of defendant No.2 to prove that Des Raj held any legal necessity while transferring the ownership in his name. The Lower Appellate Court also RSA No.1096 of 2009 (O&M) 5 found that the relinquishment deed was duly executed in the presence of the witnesses and defendant No.1 received valuable consideration and thus, dismissed the appeal. Still not satisfied, the appellants have filed the instant appeal challenging the judgment and decrees of the Courts below submitting that the Courts below have not appreciated the documentary as well as oral evidence coupled with admissions of respondents and thus, the findings recorded by the Courts below are liable to be set aside. On the basis of the aforesaid arguments, learned counsel for the appellants has submitted that the following substantial questions of law arises in this appeal: “1. Whether the pleadings of the parties and the evidence on record have been misread misinterpreted by the Courts below? 2. Whether in the facts and circumstances of the case, from the evidence on record, the Courts below have drawn wrong conclusions?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees. The case of the appellants before this Court is that the relinquishment deed dated 13.1.2000 executed by Des Raj, their father, is illegal and invalid as the property in dispute is ancestral coparcenary property and there was no legal necessity for relinquishing the aforesaid property by Des Raj. At the very outset, this Court sought assistance of the learned counsel appearing on behalf of the appellants with regard to maintainability of the suit itself filed by the appellants against the Karta of the alleged Joint Hindu Family Property during his lifetime. RSA No.1096 of 2009 (O&M) 6 Learned counsel for the appellants was unable to answer the aforesaid question and insisted to cite the following judgments reported as Krishan Gopal Kataria v. State of Punjab 1986 (2) PLR 613, Kaushal Kishore and others v. Dharam Kishore and others 1977 PLR 749, Smt. Ind Kaur v. Tara Singh and others 1978 PLR 41, Bhola Ram and another v. Bishana and others 1957 PLR 50 and U.R. Virupakshaiah v. Sarvamma & anr. 2009 (1) CCC 686 (SC) and submitted that on the basis of law settled in the aforesaid judgments, the appellants are entitled to acceptance of this appeal. Learned counsel for the appellants has supplied the photostat copies of the aforesaid judgments. Learned counsel was asked to explain the said judgments. However, learned counsel refused to read the judgments and explain the same as he was not having the second set of these judgments. However, this Court has examined the aforesaid judgments. There is no dispute with the ratio of law as settled by these judgments however, the same are not applicable to the facts and circumstances of the present case. It may also be pointed out that learned counsel for the appellants has not challenged the findings of fact as recorded by the Courts below to the effect that the appellants have failed to establish on record that property in dispute was ancestral and have also failed to connect evidence on record with the property in dispute. It has not been pointed out as to how the aforesaid findings were wrong. It may also be added at this stage that this Court in case of Raghubir Singh v. Dalip Singh and another 2004(2) PLR 599 has authoritatively held that sons have no right to claim the possession of coparcenary property or seek a declaration during the lifetime of the father. RSA No.1096 of 2009 (O&M) 7 In these circumstances, I find no merit in this appeal. No substantial question of law arises. Dismissed. March 2, 2010 (RAKESH KUMAR GARG) ps JUDGE