RSA No.130 of 2008 1 In the Punjab and Haryana High Court,at Chandigarh. RSA No.130 of 2008 (O&M) Decided on December 10,2008. Sukhwinder Singh -- Appellant vs. Mohinder Singh and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.R.S.Manhas,Advocate, for the appellant None for the respondent Rakesh Kumar Jain,J: CM Nos.12038-39 C of 2008 Allowed as prayed for. RSA No.130 of 2008 The plaintiff is in second appeal. The plaintiff filed a suit for possession as owner to the extent of 1/8th share in the land measuring 76 kanals 2 marlas situated in the revenue estate of village Talwandi on the ground that his father Amar Singh (defendant No.3) is recorded as joint owner to the extent of 1/2 share in the land in dispute which he is claiming to be ancestral Joint Hindu Family Property. The case of the plaintiff is that his father Amar Singh (defendant No.3) has inherited the property in dispute from his fore-fathers who constitute a Joint Hindu Family with defendant Nos. 1 and 2. The RSA No.130 of 2008 2 land in question to the extent of ½ sharer is coparcenary property in the hands of defendant No.3. Since the plaintiff is the member of the same coparcenary and the parties are governed by by Hindu Law for the purpose of succession, therefore, the plaintiff had acquired interest in the land by birth. It is alleged that defendant No.4 is not the actual owner. The case of the plaintiff is that his father (defendant No.3) has sold the land in dispute to defendant Nos. 1,2, 4 and 5 by way of two sale deeds dated 10.7.1998 and 16.9.1998 without any legal necessity and without any consideration. Mutation has also been sanctioned on the basis of the said sale deeds, but neither the sale deeds nor the mutation effect the right of the plaintiff. In the written statement filed by defendant Nos. 1 to 4, allegations of the plaintiff were denied. It was claimed that defendant No.3 is a joint owner to the extent of ½ share in the suit land but the same is not ancestral Joint Hindu Famly Property because defendant No.3 had not inherited the property from his father. Although defendant Nos. 1 and 2 are the real brothers of the plaintiff but the plaintiff and defendant Nos. 1 to 3 did not constitute Joint Hindu Family and are not the members of the same coparcenary, therefore, the plaintiff is not entitled to 1/8th share as claimed. Defendant No.5 did not turn up despite service,therefore, she was proceeded against ex-parte. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to decree for possession as alleged for ? OPP 2. Whether the property in dispute is Joint Hindu Family Property ? OPD RSA No.130 of 2008 3 3. Relief: After taking into consideration the evidence adduced by both the parties, the trial Court dismissed the suit. The first appeal also met the same fate. Learned counsel for the appellant has vehemently contended that the plaintiff is the owner to the extent of 1/8th share as the property in dispute is ancestral Joint Hindu Family Property. Similar plea was taken before the Courts below and the main issue in this case was as to whether the property in dispute was ancestral coparcenary property of Joint Hindu Family constituted by the appellant and defendant Nos. 1 to 3 or in other word, whether the property in dispute in the hands of defendant No.3 Amar Singh was ancestral coparcenary property. It has been found as a fact by both the Courts below that no evidence has been led on the file that the property in dispute was earlier owned by great grand father of Amar Singh and from him (great grand father) the property in dispute was inherited by grand father of Amar Singh and after death of grand father, the property in dispute was inherited by Harnam Singh. Documents Exs. P4, P-5 and P-6 only show that the property in dispute was inherited by Amar Singh from his father Harnam Singh but it does not prove that the property in dispute has devolved upon Amar Singh from three generations in an unbroken male descent. Thus, the plaintiff has failed to proved that the property in dispute was ancestral. It is well settled that all properties are presumed to be non- ancestral or self acquired in the hands of the owner until and unless proved to be ancestral. In the present case, the plaintiff has miserably failed RSA No.130 of 2008 4 to discharge the onus to prove that the property in dispute was ancestral. In it's absence, it has to be presumed that the property in dispute in the hands of Amar Singh was non-ancestral and in that situation, the plaintiff has no right to challenge the sale deeds on the ground that the property in dispute is ancestral and being member of the coparcenary, it could not have been sold by defendant No.3 to plaintiff Nos. 1,2,4 and 5 without legal necessity. In view of my above discussion, I do not find any merit in the present appeal against a finding of fact recorded by both the Courts below. Moreover, no question much-less substantial has been raised by learned counsel for the appellant in the present appeal. Thus, the same is hereby dismissed in limine. No costs. December 10,2008 (Rakesh Kumar Jain) RR Judge Refer to Reporter—Yes / No.