RSA No.860 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.860 of 2009 (O&M) Date of decision: February 18, 2010. Dayanand & Ors. ...Appellant(s) v. Dharam Pal ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri S.K. Yadav, Advocate, for the appellant(s). Shri G.P. Singh, Advocate, for the respondent. Rakesh Kumar Garg, J. (Oral): This is defendants' second appeal challenging the judgment and decree of the lower appellate court whereby suit of the plaintiff-respondent for declaration being joint owner in possession to the extent of 6/25 share in the suit land, has been decreed and plaintiff has been held entitled to seek partition of the same and the appellants have been restrained from alienating the suit land in excess of their share. Briefly, the facts of the plaintiff's case are that he is a co-owner in the suit land being coparcener. It is further averred that the suit land is ancestral qua the plaintiff as the same was inherited by him in the main line of succession without any interruption. It was further averred that during the lifetime of Mangal, who was Karta of the joint Hindu family, he had only 1/5th undivided share and plaintiff along with defendants No.2 to 4 had RSA No.860 of 2009 -: 2 :- 4/5 share in the joint Hindu family property. It was further averred that the plaintiff-respondent had pre-existing right in the aforesaid property. It was further averred that after the death of Mangal, the share of the plaintiff- respondent in the suit property was 6/25 share (i.e. 1/5 share of the plaintiff + 1/25 share inherited out of the share of Mangal after his death). Defendants No.2 to 4 were having 18/25 share in equal shares and defendant No.1 was having 1/25 share. It is further averred that after the expiry of Mangal, the entries were wrongly effected in the record of rights by the revenue officials. The entries so recorded in the record of rights are illegal and are not binding upon the plaintiff-respondent. It was further submitted that defendant No.1 in collusion with defendants No.2 to 4 intends to alienate more than her share in the suit property taking undue advantage of wrong entries. Hence, the present suit. The suit was contested by the appellants submitting that after the death of Mangal, the property of Mangal was inherited by the plaintiff and defendants No.1 to 4 in equal share and entries to this effect were effected in the revenue record and the same exist. It is further averred that plaintiff and defendants No.2 to 4 have been owners in possession of the property of Mangal (since deceased) in equal shares as his descendants. It was denied that Mangal was karta of the joint Hindu family during his lifetime. It was further averred that he was owner of the disputed property and had expired intestate in the year 1960 and for this reason the plaintiff and defendants became owners in possession of the disputed property in equal share. It was denied that Mangal was owner to the extent of 1/5 share during his lifetime and it was asserted that he was absolute owner in possession of the same during his lifetime. It was further averred that all the RSA No.860 of 2009 -: 3 :- defendants were owners in possession to the extent of 1/5 share each and the revenue entries are correct. Rest of the averments of the suit were denied and dismissal of the suit was prayed for. The appellants also raised preliminary objections regarding maintenance, limitation, estoppel, etc. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is joint owner to the extent of 6/25 share in the suit land and is entitled to partition thereof as prayed? OPP 2. Whether the plaintiff is entitled to the relief of injunction restraining the defendants from alienating the property more than their share? OPP 3. Whether the suit is maintainable in the present form? OPD 4. Whether the plaintiff is estopped by his own act and conduct? OPD 5. Whether the suit is barred by limitation? OPD 6. Whether the plaintiff has concealed the material facts and has not come with clean hands if so its effect? OPD 7. Relief. Reshami Devi – defendant No.1 died on 7.10.2006. Defendants No.2 to 4 were impleaded as her LRs. The parties led their respective evidence. After hearing learned counsel for the parties, the trial court held that the plaintiff was not proved to be the joint owner to the extent of 6/25 share in the suit land. Under issue No.2, it was held that plaintiff- respondent was not entitled to the relief of injunction restraining the appellant from alienating the suit property in excess of their share. The RSA No.860 of 2009 -: 4 :- plaintiff was estopped from filing the present suit by his act and conduct. The suit was also held to be barred by limitation. Issue No.3 and 6 were not pressed by the defendant-appellants and were decided against them. Resultantly, the suit was dismissed. On appeal filed by the plaintiff- respondent, the lower appellate court reversed the findings on issues No.1, 2, 4 and 5 and held that the plaintiff- respondent was owner to the extent of 6/25 share in the suit land and was entitled to restrain the defendants from alienating the suit property in excess of their share. While accepting the appeal, the lower appellate court observed as under:- “A fact pleaded by the plaintiff can be either admitted or denied by the defendant. If a fact is submitted by the defendant, the plaintiff is not required to prove it. The exception to this rule, laid down in Gurjant Singh Major's case supra requiring the proof of ancestral nature of property despite admission of the fact was in the case where the documentary evidence on the point was contrary to the admission. There is no documentary evidence on the file which could be said to be contrary to the admission of the ancestral nature fo the suit property by the defendant. The admission is so candid that the place could not be required to prove this fact and when this fact stands proved on account of the admission of the defendants, learned trial court could not hold the plaintiff to be unsuccessful in proving the ancestral nature of the suit property with the held of Gurjant Singh Major's case, RSA No.860 of 2009 -: 5 :- supra. In these circumstances, the suit property has to be taken as ancestral property in the hands of Mangal and as the parties are Hindu, Mangal constituted a coparcenary with his sons, i.e., plaintiff and defendants No.2 to 4. On the death of Mangal which took place after the enforcement of the Act, a notional partition would be deemed to have taken place and 1/5th share of Mangal in the coparcenary would devolve on his heirs as per the provisions of Section 8 of the Act. Provisions of Section 6 of the Act would definitely govern this case regarding the rest of the property and the entire property was not to be succeeded by the heirs of Mangal in terms of section 8 of the Act. This is what plaintiff claims to have been the mode of succession at the time of death of Mangal and his claim to 1/5th share in the suit property by birth and 1/25 by inheritance of Mangal is fully justified. The suit property is not partitioned so far as per the shares which are recorded in the revenue record on implementation of mutation of inheritance of Mangal. Mere statement of plaintiff that he is not in possession of 1/5th share of the suit property would not mean that he is not in joint possession of the suit property. Even if he is out of possession of the suit property and he is a co-sharer in the same, his suit cannot be defeated on the ground of limitation. The decision in Gurcharan Singh's case, supra, squarely applies to the facts of this case. Mutation RSA No.860 of 2009 -: 6 :- does not create title and the adverse entries in the revenue record do not affect a person till the opposite party is in adverse possession and has perfected his/her title to the same by remaining in adverse possession for 12 years. So, the suit of the plaintiff cannot be held barred by limitation. As a corollary of these findings, the plaintiff has to be held to be entitled to declaration of his title to 6/25 share in the suit land and he is also entitled to the relief of injunction.” Not satisfied with the aforesaid judgment and decree of the lower appellate court, the defendants have filed the instant appeal. Learned counsel appearing on behalf of the appellants has vehemently argued that it is not established on the record that the suit property was ancestral. The burden of proof was upon the plaintiff – respondent to prove the said fact, who has failed to establish the same. Learned counsel for the appellants has further argued that the mutation was sanctioned in the year 1960 whereas the present suit was filed in the year 2001 after a lapse of 41 years and therefore, the present suit was barred by limitation and even in the present suit the plaintiff- respondent has not challenged the mutation sanctioned in favour of the appellant and thus, the following substantial questions of law arise in this appeal:- 1. Whether the judgment and decree dated 17.10.2008 passed by District Judge, Rewari is against the provision of Hindu Succession Act and totally misreading of evidence and therefore, caused miscarriage of justice. 2. Whether a female (widow), unmarried daughter is RSA No.860 of 2009 -: 7 :- entitled to get share in the suit property at the time of partition of the land, equivalent to a male member? 3. Whether the plaintiff can take benefit of the admission of the defendants which is contrary to the documentary evidence? 4. Whether the suit property is ancestral property and burden of prove lies upon the plaintiff to prove the same? 5. Whether the plaintiff can file a suit for declaration after 41 years without challenging the mutation? On the other hand, learned counsel for the respondent has submitted that the appellants have specifically admitted the fact qua the ancestral nature of the property in dispute and there is no documentary evidence on record which can be said to be contrary to the aforesaid admission made by the appellants and therefore, there was no need to further prove the aforesaid fact. Learned counsel further submitted that mutation does not create title and therefore adverse entry in the revenue record does not affect the right of the person who is holding the title till his title is threatened and therefore, the suit of the plaintiff cannot be held to be barred by limitation and, thus, the appeal is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decree. A fact pleaded by the plaintiff can be either admitted or denied by the defendant. It is well settled that if a fact is admitted by the defendant, the plaintiff is not required to prove the same. Moreover, learned counsel for the appellants was unable to point out any documentary evidence which RSA No.860 of 2009 -: 8 :- was placed on record of the case on the basis of which it can be stated that admission of the appellants with regard to the ancestral nature of the suit property was contrary to the documentary evidence on the record. In these circumstances, the suit property has to be taken as ancestral property in the hands of Mangal. On his death, which took place after the enforcement of the Hindu Succession Act, a notional partition would be deemed to have taken place and 1/5th share of Mangal in the coparcenary property would devolve on his heirs as per the provisions of Section 8 of the said Act. Provisions of Section 6 of the Act would govern the present case and, thus, the plaintiff's claim to 1/5th share in the property by birth and 1/25 share by inheritance of Mangal is fully justified and no fault can be found with the findings of the lower appellate court in this regard. The plea of the appellants regarding no challenge to the mutation sanctioned in their favour and that the suit was time barred is also of no consequence as it is well settled that mutation does not create title and the adverse entries in the revenue record do not affect a person till the title of the person is threatened by the opposite party. No other point was urged. No substantial question of law arises. Thus, I find no merit in this appeal. Dismissed. February 18, 2010. [ Rakesh Kumar Garg ] kadyan Judge