R.S.A. No. 730 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 730 of 2009 (O&M) Date of Decision : 23.3.2009 Balwan Singh .......... Appellants Versus Smt. Panmeshwari & others ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Ashok Singla, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 30.10.2008 passed by the learned Courts below vide which suit filed by the plaintiff / respondents for declaration stands decreed. The plaintiff brought a suit against the defendant /appellants claiming that Narender son of Hukam Chand son of Sher Singh alias Shera was co-sharer and in joint possession with the plaintiffs to the extent of 1/12 share of agricultural land situated in khewat No. 119/115 Min. Khata No. 147 Min, Rect. and Killa No. 15/10/1, measuring 5 Kanals -15 Marlas. It was claimed that there is a joint pucca house of the plaintiffs and Narender above mentioned in Rect. and Killa No. 15/10/1, measuring 350 Sq. yards having pucca boundaries equal to 10 marlas i.e. 10/4097 share out of 204 Kanals 17 Marlas land of khewat No. 115 of village Jagdishpur, Tehsil and R.S.A. No. 730 of 2009 2 District Sonepat, which is shown by the letters A, B, C, D in the site plan in which Narender used to be in joint possession to the extent of 1/12 share in the land mentioned in para 1 of the plaint and the plaintiffs to the extent of 4 share in equal shares as per dimensions in para no.2 of the plaint. Narender son of Hukam Chand died on 14.2.2002 leaving behind plaintiff No.1 as his mother, defendants No. 2 & 3 as widow and daughter respectively who inherited his 1/12 share as per Hindu Succession Act. It was claimed that defendant No. 2 illegally and wrongly in collussion with revenue officials got sanctioned mutation No. 1053 on 15.6.2002 at the back of the plaintiffs only in the names of defendants No. 2 & 3 regarding the entire 1/12 share of deceased Narender whereas plaintiff No.1 was also entitled to inherit 1/36 share. The plaintiff filed a suit titled Smt. Panmeshwari Vs. Smt. Saroj etc. challenging the mutation No. 1053. She also is said to have executed an exchange deed duly registered on 26.6.2002 regarding the entire house mentioned in para 2 with the defendant No.1 whose house is situated in the abadi of village Jagdishpur. It was the case of the plaintiffs/ respondent that defendant No.2 was not entitled to exchange the entire house measuring 350 square yards when defendant No.2 was only co-sharer to the extent of 1/36 share out of 1/12 share. The exchange deed dated 26.6.2002 was wrong, illegal and void and thus the same was sought to be set aside. The declaration was sought that the plaintiffs are co-sharers and in joint possession of the house in dispute, shown by letters A, B, C, D and plaintiff No.1 was having share to the extent of 1/12 + 1/36 share. It was prayed that the exchange deed be set aside. R.S.A. No. 730 of 2009 3 The suit was contested by the defendants / appellant wherein preliminary objections were taken about the maintainability, locus standi, estoppel as well as Court fee. It was also pleaded that the suit was bad for non-joinder, cause of action etc. A plea was taken that plaintiff had since died long back and the suit has been filed by impersonating somebody else as Smt. Panmeshwari. On merits, the allegations were denied. It was claimed that there are various properties situated in the abadi of village Jagdishpur which were owned by the parties and without accounting these properties, present suit was not maintainable. The further stand taken was that house in which defendants No. 2 and 3 reside, was made by late Narender out of his exclusive funds. It was denied that plaintiffs are co-sharers in the disputed house. The exchange deed was said to have been correctly executed. The mutation in favour of defendants was claimed to be correct. It was also pleaded that defendant No.2 was fully competent to alienate the property. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the impugned exchange deed dated 26.6.2002 is wrong, illegal and void on the grounds taken in the plaint? OPP 2. Whether the plaintiffs are co-sharers in possession of the house in dispute ? OPP 3. Whether the present suit has been filed by somebody else impersonating as plaintiff No.1 Panmeshwari ? OPD 4. Whether the suit of the plaintiffs is not maintainable in R.S.A. No. 730 of 2009 4 the present form ? OPD 5. Whether the plaintiffs have no locus standi to file the present suit ? OPD 6. Whether the plaintiffs are estopped by their own act and conduct ? OPD 7. Whether the suit of the plaintiffs has not been properly valued for the purposes of court fees ? OPD 8. Relief.” The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact, holding that the exchange deed dated 26.6.2002 was wrong, illegal and void qua the rights of the plaintiff as admittedly was entitled to equal share with defendant No.2. The plaintiff was thus held to be co-sharer in the house. On issues No.3 to 7 no evidence was led by the defendant / appellants the learned Court, therefore, came to the conclusion that somebody else had not filed by the present suit by impersonating plaintiff No.1. No evidence was led to prove the other issues. Accordingly, other issues were also decided against the appellant / defendants and the suit was decreed for declaration, to the effect that the plaintiffs are co-sharers in joint possession of house in dispute which has been built in killa No. 15/10/1 measuring 350 sq. yards as shown by letters ABCD and that plaintiff No.1 is having share to the extent of 1/12 plus 1/36 share and plaintiffs No. 2 and 3 have 1/12 share each whereas defendant No.3 is having 1/36 share situated in the revenue estate of village Jagdishpur. The exchange deed regarding the disputed house dated 26.6.2002was illegal, void and not binding upon the R.S.A. No. 730 of 2009 5 rights of the plaintiffs and defendant No.3 to the extent of shares of plaintiffs and defendant No.3. In appeal, the judgment and decree was affirmed by the learned lower appellate Court. The learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether judgment and decree exhibited P-9 and P- 10 passed in a suit to which appellant was not impleaded as party by the plaintiff/ respondent, could have been relied upon against the appellant and his rights could have been affected on the basis of said judgment and decree especially when in the eyes of law the same are not binding upon the appellant ? 2. Whether in absence of making entire land measuring 204 kanal 17 marla of joint khata no. 115 as to be subject matter of the suit for declaration of share, the suit could have been filed or any suit can said to be maintainable with regard to portion of joint khata and shares in absence of the whole land could have been determined ? 3. Whether the exchange of 350 sq. yards without taking into consideration the whole of the joint land measuring 204 kanal 17 marla and shares of R.S.A. No. 730 of 2009 6 co-sharer in the said whole land, could have been declared to be beyond share especially when share of appellant predecessor in interest, in the eyes of law was to be calculated from the whole land and with the said calculation the exchange is well within the share ? 4. Whether without seeking partition of the whole joint land, the exchange of part of the joint land could have been disturbed whereas as per law and Full Bench judgments of this Hon'ble High Court such transfers are subject to the partition thus before partition whether such transfers could have been disturbed ? 5. Whet her the suit is hit by Order 2 Rule 2 C.P.C. ? 6. Whether without including the whole subject matter of exchange in the subject matter of the suit, the suit was maintainable ? 7. Whether proper issues were not framed and proper opportunity to lead evidence was not given ? 8. Whether the impugned judgments and decree are based upon surmises and conjectures and finding recorded therein are perverse and are based upon inadmissible evidence ? 9. Whether without considering the improvements made in the property by the appellant, the R.S.A. No. 730 of 2009 7 exchange could have been disturbed ? The learned counsel for the appellants contends that the first substantial question of law deserves to be answered in favour of the appellants as the judgments and decree Ex. P-9 & Ex.P-10, could not be relied upon as the appellants were not party to said suit. This plea of the learned counsel for the appellant is totally misconceived. The parties inter se had sought declaration of their respective rights and defendant / appellants had nothing to do and therefore were neither necessary nor proper party to the suit. However, defendant / appellants were bound by declaration of rights as they claimed title under them. The judgments and decrees referred to above, were relied upon in order to hold that the plaintiff / respondent was entitled to share in property of Narender. The second substantial question of law also deserves to be answered against the appellants as there is neither any pleading nor issue was framed. It is not open to the appellant to raise a plea for the first time in the regular second appeal, unless it is shown that it is purely a question of law. The Courts rightly held that suit was filed by Smt. Panmeshwari, thus findings are not vitiated to claim it to be substantial question of law. The 4th substantial question of law does not arise for consideration in the present case as the plaintiff / respondent had challenged Ex.P-10 qua the house in which the parties were said to have share. R.S.A. No. 730 of 2009 8 The learned Courts below on appreciation of evidence have recorded a concurrent finding holding that plaintiff had share and therefore the exchange deed was not binding qua their respective share. The learned counsel for the appellant thereafter contends that the present suit was hit by the principle of Order 2 Rule 2 of the Code of Civil Procedure. This plea is totally misconceived it is not understood as to how the such a plea can be raised without setting up case in pleadings in the written statement and claiming issue thereon. There is no evidence to show how the suit was hit by Order 2 Rule 2 of the Code of Civil Procedure. The 6th substantial question of law also does not arise for consideration in this appeal. The plaintiff appellants had challenged the exchange deed in favour of the defendants / appellant by a party who did not have titled to effect sale qua share of plaintiff / respondents. The 7th substantial question of law does not arise. The issues framed were not pressed nor any such plea was raised before the learned lower appellate Court, nothing is shown as to which of the issue arising of the pleadings were not framed, and how any prejudice was caused to the defendant / appellants by not framing of issue such plea cannot be raised for the first time in the regular second appeal. The 8th substantial question of law that the impugned judgments and decree are based on surmises and conjectures and finding recorded therein are perverse and based upon inadmissible evidence, is also totally misconceived, the learned Courts below have rightly held that plaintiff / respondents were entitled to inherit the property of Narender being mother, and falling in category No.1 of legal heir, thus, entitled to the share with R.S.A. No. 730 of 2009 9 wife and daughter. The findings recorded by the learned Courts below, therefore, cannot be said to be perverse or outcome of misreading of evidence, as contended. Finally the learned counsel for the appellant contends that the 9th substantial question of law raised deserves to be answered in favour of the appellant as he made improvements in the property. This is again a question of fact which was required to be proved by pleading and leading evidence. This plea cannot be raised for the first in the regular second appeal without laying foundation whatsoever. This appeal is totally misconceived. The substantial questions of law claimed to be arising are answered against the appellants. No merit. Dismissed. 23.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE