R. S. A. No. 392 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 392 of 2010 Date of Decision : April 09, 2010 Smt. Sharda Devi .... Appellant Vs. Shivam Education Society of India and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Anil Malik, Advocate for the appellant. Mr. Akshay Tanwar, Advocate for Mr. Jagat Singh, Advocate for respondent no. 1. * * * L. N. MITTAL, J. (Oral) : C. M. No.4533-C of 2010 : Application is allowed and Annexure P-1 is taken on record, subject to all just exceptions. Main Appeal : Defendant no.4 Sharda Devi has filed the instant second appeal. Suit was filed by respondents no.6 to 12 against respondent no.1 - Shivam Education Society of India (defendant no.1), Devender R. S. A. No. 392 of 2010 2 Kumar (defendant no.2 – not party to the instant appeal), Gajender Singh – respondent no.13 (defendant no.3) and Sharda Devi – appellant (defendant no.4). Respondents no.2 to 5 are members/office-bearers of respondent no.1 Society. Plaintiffs no. 1 to 4 are wife and three daughters of defendant no.2, whereas plaintiffs no.5 to 7 are wife and two daughters of defendant no.3. Defendants no.2 and 3 gifted the suit land measuring 24 kanals to defendant no.1 Society vide registered gift deed dated 21.06.2007. The said gift deed has been challenged in the suit alleging that the suit property was ancestral coparcenary property of defendants no.2 and 3 and therefore, they had no right to gift the same. The plaintiffs, being members of the coparcenary property, claimed right therein by birth. Relief of permanent injunction and possession was also claimed. Learned Additional Civil Judge (Senior Division), Bhiwani, vide judgment and decree dated 07.03.2009, decreed the plaintiffs' suit. However, first appeal preferred by defendant no.1 Society has been allowed by learned District Judge, Bhiwani, vide judgment and decree dated 20.10.2009, thereby dismissing the suit of the plaintiffs. Feeling aggrieved, the instant second appeal has been preferred by defendant no.4. I have heard learned counsel for the appellant and perused the case file. It has come in evidence that defendant no.1 Society mortgaged the suit land with bank to raise loan. However, the plaintiffs, with dishonest and mala fide intention, did not implead the bank as party to the suit and concealed the said material fact in plaint from the Court. Defendant no.4 appellant claimed that vide family settlement dated 10.07.1999, the suit land came to her share. Defendant no.4 is sister of defendants no.2 and 3. However, the plaintiffs did not challenge the said family settlement. The said family settlement was also placed on record without any objection from the plaintiffs. The suit of the plaintiffs has thus rightly been dismissed. R. S. A. No. 392 of 2010 3 Defendant no.4 has no locus standi to file the instant second appeal because as per her written statement (Annexure P-1), defendant no.4 did not make any counter claim in the suit nor defendant no.4 has filed any separate suit to challenge the gift deed of suit land by defendants no.2 and 3 to defendant no.1. It thus emerges that defendant no.4 could not be granted any relief in the suit as she has not claimed any relief. Consequently, defendant no.4 has no locus standi to file the instant second appeal. In addition thereto, defendant no.4 in her written statement prayed that the suit be decreed. However, defendant no.4 did not make any counter claim in her own favour. In addition to the foregoing, learned counsel for the appellant states that the defendants no.2 and 3 got the suit land from their father Tajpal Singh by way of decree dated 16.10.1984. It means that defendants no.2 and 3 did not inherit the suit land from their father Tejpal Singh. In this view of the matter also, the suit land cannot be said to be ancestral or coparcenary property in the hands of defendants no.2 and 3. For this added reason, the gift deed executed by defendants no.2 and 3 in favour of defendant no.1 cannot be said to be illegal. For the reasons recorded herein above, I find no merit in the instant second appeal, which is accordingly dismissed in limine. April 09, 2010 ( L. N. MITTAL ) monika JUDGE