RSA No.1601 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.1601 of 2008 DATE OF DECISION: 1 st APRIL, 2011 Baldev Singh & others .... Appellants Versus Nirmal Singh & other .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. R. S. Mittal, Senior Advocate with Mr. S. K. Tripathi, Advocate for the appellants. Mr. G. P. Singh, Advocate for the respondents. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by plaintiffs No.3, 4 and 6 along with their father Baldev Singh proforma defendant No.2, having lost in both the courts below. Suit was filed by appellants No.2 to 4 and proforma respondents No.4 to 6 herein, who are all sons of Baldev Singh appellant No.1/proforma defendant No.2. Defendant No.1 Nirmal Singh has since died and is represented by respondents No.1 to 3 as his legal representatives. Respondent No.1 has also since died and is represented by his legal representatives. Natha Singh had three sons i.e. Nirmal Singh defendant No.1, Baldev Singh proforma defendant No.2 and Bachan Singh (not party to the lis). Case of the plaintiffs is that the suit land was purchased by Natha Singh in the RSA No.1601 of 2008 -2- names of his aforesaid three sons namely Nirmal Singh, Baldev Singh and Bachan Singh out of funds of joint Hindu family and, therefore, the suit land was ancestral joint Hindu family property in the hands of defendants No.2. Plaintiffs in the suit have challenged consent judgment and decree dated 23.01.1971 suffered by proforma defendant No.2 in favour of his brother defendant No.1 alleging that proforma defendant No.2 could not suffer the said decree because the suit land was ancestral coparcenary property in which plaintiffs have share by birth. Defendant No.1 contested the suit and broadly denied the plaint allegations. Proforma defendants No.2 broadly admitted the claim of the plaintiffs. Learned Civil Judge (Junior Division), Sirsa vide judgment decree dated 05.12.2002 dismissed the plaintiffs' suit. First appeal preferred by proforma defendant No.2 and plaintiffs No.3, 4 and 6 has been dismissed by learned Additional District Judge, Fast Track Court, Sirsa vide judgment and decree dated 23.01.2008. Feeling aggrieved, instant second appeal has been preferred by the same appellants i.e. proforma defendant No.2 and plaintiffs No.3, 4 and 6. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that Natha Singh mortgaged his land vide mortgage deed dated 23.03.1956 Exhibit D-8 for Rs.5,500/- and from the said mortgage money, purchased part of the suit land vide sale deed dated 21.06.1956 Exhibit D-3 for Rs.6,875/- in the names of his three sons along with some other co-vendees. It was also pointed out that RSA No.1601 of 2008 -3- Natha Singh also mortgaged his land for Rs.14,000/- vide mortgage deed dated 16.08.1963 Exhibit D-9 and for Rs.11,000/- vide mortgage deed dated 02.04.1964 Exhibit D-10 and then agreed to purchase the remaining suit land vide agreement to sell dated 25.07.1964 and paid Rs.3,200/- as earnest money and then purchased the said land vide sale deed dated 09.06.1966 Exhibit D-4 for Rs.7,218.75 in the names of his three sons and thus the entire suit land is proved to be ancestral property. On the other hand, learned counsel for respondents No.1 to 3 contended that the land mortgaged by Natha Singh to raise money allegedly for purchase of the suit land is not proved to be ancestral or coparcenary property in the hands of Natha Singh and, therefore, suit land allegedly purchased by Natha Singh from the said mortgage money cannot be said to be ancestral or coparcenary property in the hands of Balev Singh defendant No.2. It was also contended that suit land has not been connected with the land purchased through the aforesaid sale deeds. Learned counsel for the respondents also contended that plaintiffs were not born when impugned consent decree dated 23.01.1971 was suffered and, therefore, they have no locus standi to challenge the same. It was also submitted that the suit is barred by limitation because decree dated 23.01.1971 has been challenged in suit which was filed on 06.05.1994. Learned counsel for appellants contended that Jagdeep Singh plaintiff No.1 (proforma respondent No.4) was born before the impugned consent decree dated 23.01.1971 was suffered and, therefore, he had locus standi to file the suit whereas it was admitted that the other plaintiffs were born after the said decree was suffered. Per contra, learned counsel for respondent RSA No.1601 of 2008 -4- Nos.1 to 3 pointed out that suit on behalf of Jagdeep Singh, Sukhdeep Singh and Sohan Singh (plaintiffs No.1 and 2 and 5/proforma respondents No.4 to 6) stood dismissed as withdrawn, which fact is not disputed by the counsel for the appellants. It was, therefore, contended by learned counsel for the respondents that appellants No.2 to 4 (plaintiffs No.3, 4 and 6) had no locus standi to file the suit whereas appellant No.1 Baldev Singh proforma defendant No.2 himself did not challenge the consent decree at any stage. I have carefully considered the rival contentions. There is no documentary evidence to depict that the land which was mortgaged by Natha Singh vide mortgage deeds dated 23.03.1956 Exhibit D-8, 16.08.1963 Exhibit D-9 and 02.04.1964 Exhibit D-10 was ancestral coparcenary property in the hands of Natha Singh. It is also not proved that the land purchased in the names of Baldev Singh etc. vide sale deeds dated 21.06.1956 Exhibit D-3 and dated 09.06.1966 Exhibit D-4 was purchased from the aforesaid mortgage money. It may be added that sale deed dated 09.06.1966 is for total consideration of Rs.7218.75 only, whereas the mortgage money vide mortgage deeds dated 16.08.1963 and 02.04.1964 was Rs.14,000/- and Rs.11,000/- respectively i.e. Rs.25,000/- in all and the said huge amount was not, therefore, meant for purchasing the land vide sale deed dated 09.06.1966, which was purchased almost three years after mortgage deed dated 16.08.1963 and more than two years after mortgage deed dated 02.04.1964. Thus examined from any angle, it cannot be said that suit land was ancestral coparcenary property in the hands of Baldev Singh. Concurrent finding by the courts below does not suffer from any infirmity, much less illegality or perversity so as to warrant interference in second appeal. RSA No.1601 of 2008 -5- In addition to the aforesaid, appellants No.2 to 4 i.e. Plaintiffs No.3, 4 and 6 were not even born when the impugned consent decree dated 23.01.1971 was suffered by Baldev Singh and, therefore, these appellants had no locus standi to challenge the said decree whereas the suit stands dismissed as withdrawn qua the remaining three plaintiffs No.1, 2 and 5. In this view of the matter also, the suit has been rightly dismissed. The suit is also barred by limitation as consent decree dated 23.01.1971 has been challenged in the suit which was instituted on 06.05.1994 i.e. more than 23 years after the consent decree was passed. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 1st April, 2011 'raj'