Regular Second Appeal No. 708 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 708 of 2009. (O&M) Date of Decision: 11.2.2009 *** Kusum Lata & Ors. .. Appellants VS. Sanjay Kumar & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Ramesh Sharma, Advocate for the appellants. *** ARVIND KUMAR, J. This is defendants' regular second appeal. Plaintiff-respondent No.1 got instituted a suit and sought declaration that he is owner in possession of the properties mentioned in the plaint to the extent of 1/2 share, as given to him by his deceased father Sh. Jagdishwar Nath, during his lifetime, along with defendant Nos. 1 to 5 i.e. appellants herein, being the legal representatives of deceased Jagdishwar Nath and further sought permanent injunction by restraining the appellants from changing the nature of the property. Further injunction was sought against defendant No.6 (respondent No.2 herein) from delivering the possession of the property mentioned at clause (a) in the plaint and also from restraining defendant No.7 (now respondent No.3) from making the payment of provident fund, gratuity/ service benefits etc. to the appellants exclusively. It was his case that the suit properties, except mentioned at clause (a), have been partitioned amongst the parties while the property at clause (a) is still to be handed over to the legal representatives of deceased Jagdishwar Nath. The stand of the appellant-defendants No.1 to 5 was that the plaintiff being LRs of deceased Jagdishwar Nath is entitled to inherit 1/6th Regular Second Appeal No. 708 of 2009 2 share in the estate left by the deceased and for which he has been given ancestral property at Shahbad, leaving no claim in the other properties left by the deceased. After contest, the learned trial court disbelieved the version of the plaintiff of alleged oral partition vide which he was given 1/2 share in the suit properties, since nothing substantial was produced by him in support of the said plea. Thus, the learned trial court refused to grant injunction by restraining defendants No.1 to 5 from alienating the suit property to the extent of their share, but restrained them from changing the nature of the suit properties detrimental to the interest of the plaintiff, who admittedly, is the LR of deceased Jagdishwar Nath and observed that the plaintiff is entitled to his share according to rules of succession. With regard to property mentioned at clause (a), since it was found that the same has not been mutated in favour of any party after the death of Jagdishwar Nath, defendant No.6-HUDA was directed to transfer the rights in favour of all the LRs of deceased, as per provisions of law and not exclusively in favour of any party. Qua the other relief of share in service benefits of deceased Jagdishwar Nath, it was found that the funds lying with defendant No.7 Bank stood already released in favour of the widow of the deceased namely Smt. Kusumlata being nominee and thus, it was held that the plaintiff, for claiming any share therein, may file a suit for recovery and for the relief of injunction in respect of amount of provident fund, gratuity etc., the same was denied due to non-impleadment of necessary parties. Thus, in nutshell the suit of the plaintiff was partly decreed to the aforesaid extent. Aggrieved with the same defendants No.1 to 5 preferred an appeal, which has been dismissed by the learned first appellate Court below. Hence this regular second appeal. The grouse of the appellants is that the suit ought to have been dismissed by the Courts below in view of the fact that the plaintiff was of unsound mind, as provided under Order 32 Rule 1 CPC and the Courts below have erred in restraining the appellants from changing the nature of the suit properties, irrespective of the fact that the same are self-acquired properties of appellant Rohit. But there is no force in these contentions. It is apt to reproduce the findings returned by the learned first appellate Court, in para Nos. 18, 19 and 20 of its judgment, while dealing with these Regular Second Appeal No. 708 of 2009 3 contentions,:- “18. By now, it is well settled that nobody can travel beyond his pleadings. It is also well settled that the denial of facts must be specific and an evasive denial no denial. It may be mentioned here that it is not the case of the defendants No.1 to 5 in their written statement that the suit filed by the plaintiff was not maintainable as the plaintiff was a person of unsound mind. Nor any evidence has been led by the defendants in this behalf. When it is not the case of the defendants in their pleadings or evidence that plaintiff Sanjay was of unsound mind at the time of filing his suit from the evidence of PW2 Chhattar Pal, it cannot be said that plaintiff Sanjay was of unsound mind and suit filed by him in his personal capacity was not maintainable especially in the circumstances when there is no medical evidence in this behalf. Hence, the first argument raised by Ld. Counsel for defendants No.1 to 5 is meritless and the same cannot be accepted. 19. As regards the argument of learned counsel for defendants No.1 to 5 that defendant No.4 Rohit Kumar was owner in possession of the property mentioned at point (B) of the head note of the plaint under sale-deed, Ex.D1, I am of the view that it is not the case of the defendants No.1 to 5 in their written statement that the said property was purchased by defendant No.4 from his own income vide sale-deed Ex.D1 and it was exclusively owned and possessed by him. In para No.1 of the plaint, the plaintiff had specifically pleaded that the suit properties as detailed in the head note of the plaint including the property mentioned at point (B) were owned and possessed by Jagdishwar Nath Gupta deceased being his self acquired properties and the said fact has not been specifically denied by the defendants No.1 to 5 in the corresponding Regular Second Appeal No. 708 of 2009 4 paras of their written statement. Defendant No.4 Rohit Kumar when appeared in the witness-box as DW1 had deposed that his date of birth was 17.9.1971 and he had passed his matriculation examination. After that, he joined Gur-Sugar training and thereafter he started his business in the name of Rohit Handloom. He got the firm registered in the year 1990. Admittedly, the sale-deed Ex.D1 was executed on 25.4.1990 for a consideration of Rs.90,000/-. It is not shown by defendant No.4 Rohit Kumar that on 25.4.1990 he had Rs.90,000/- with him for purchasing the property mentioned at point (B) of the head note of the plaint. Rather, it has come in his evidence that after passing matriculation examination, he joined Sugar-Gur training and firm Rohit Handloom was got registered in the year 1990. A presumption is raised that the said property was purchased from the funds of his father Jagdishwar Nath deceased. Things would have been different if at the time of execution of sale-deed Ex.D1, defendant No.4 Rohit Kumar had some independent source of income for purchasing the aforesaid property in these circumstances, arguments of learned counsel for defendants No.1 to 5 that defendant No.4 Rohit Kumar was the exclusive owner and in possession of property mentioned at point (B) in the head note of the plaint under sale-deed, Ex.D1 cannot be accepted. 20. As regards the argument of Learned counsel for defendants No.1 to 5 that the plaintiff should have sought a relief of possession of the suit properties along with declaration, I am of the view that on the death of Jagdishwar Nath Gupta, all his legal heirs succeeded to his estate and became owners in possession of the disputed properties. By now, it is well settled that the possession of a co-sharer is deemed to be on his/ her behalf and on behalf of the other co-sharers, who are Regular Second Appeal No. 708 of 2009 5 actually out of possession. In these circumstances, the other co-sharer who is actually out of possession shall be deemed to be in possession of the joint properties and he need not to file a suit for possession against the other co-sharers, who are actually in possession of the joint property because the possession of a co-sharer is deemed to be on his behalf and on behalf of other co- sharers. Hence, the argument of learned counsel for defendants No.1 to 5 that the plaintiff should have sought a relief of possession of the disputed property along with declaration cannot be accepted.” From the aforesaid observations, it is manifestly clear that the Courts below have thoroughly considered the matter while granting the relief to the plaintiff, as indicated above and the appellants cannot derive any benefit from the fact that the plaintiff failed to step into the witness-box in support of his case, which otherwise stands proved by the other evidence. Nothing has been shown to deviate from the view taken by the Courts below. It cannot be said that the approach of the Courts below is either illegal, perverse or based on no evidence. No substantial question of law, which is sine qua non for admission of appeal, is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 11,2009 Jiten