IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) R.S.A. No. 4119 of 2002 (O&M) .... Mukhtiara (since deceased) through L.Rs. and others. .......Appellants through Shri M.L.Saggar, Senior Advocate with Shri G.P.Vashisth, Advocate. Versus Charan Singh and others. ....... Respondent nos.1 to 3 through Shri C.B.Goel, Advocate. None for other respondents. (2) R.S.A. No. 4120 of 2002 (O&M) .... Dharam Singh and others. .......Appellants through Shri M.L.Saggar, Senior Advocate with Shri G.P.Vashisth, Advocate. Versus Charan Singh and others. ....... Respondent nos.1 to 3 through Shri C.B.Goel, Advocate. None for other respondents. Date of Decision: 23.3.2010 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... R.S.A.No.4119 of 2002 (O&M) -2- .... Mahesh Grover,J. By this judgment, I propose to dispose of the above mentioned two Regular Second Appeals which have been preferred against common judgment and decree dated 7.6.2002 passed by the Additional District Judge, Panipat (hereinafter described as `the first appellate Court'). Two civil suits – one by Chandan, Bhartu, Jeeta, Mukhtiara and Dharam Singh for declaration & permanent injunction and the other by Kabaz & Chandu for permanent injunction were filed. In the suit filed by Chandan etc., Kabaz & Chandu were arrayed as defendants, whereas in their suit, Kabaz and Chandu impleaded Chandan, Dharam Singh, Jeetu, Bhartu, Mukhtiara and sons of Chandan, Jeetu, Bhartu as well as grandson of Bhartu as defendants. They all are successors-in-interest of Surta son of Mawasi, who was resident of village Dhodpur,Tehsil Panipat, Sub-Tehsil Samalkha, District Karnal (now District Panipat) and was owner of land measuring 325 kanals and 8 marlas. The sons of Surta inherited this land in equal shares of 1/7th each. Chandan etc. had stated it to be ancestral un- partitioned coparcenary property of Hindu Joint Family, whereas Kabaz and Chandu denied this fact and averred that each of the co-sharers was in possession of specific killa numbers as per his share. Two gift-deeds dated 28.2.1987 and 8.5.1987 are in question vide which Chandu had bequeathed his share of land comprised in khewat no.43, khatoni nos. 72 to 82, measuring 41 kanals 8 marlas in favour of Kabaz, who, thereafter, became owner in possession as co-sharer over 81 kanals 16 marlas. Chandu was not having any wife or son/ daughter and, therefore, he was stated to have gifted R.S.A.No.4119 of 2002 (O&M) -3- .... his share of land to Kabaz. Chandan etc. had alleged that Chandu could not gift away the land of his share, particularly the specific khasra numbers, in favour of other coparcener,i.e., Kabaz as the entire holdings was joint. They had also stated him to be of unsound mind and not having worldly sense or understanding during the period when the gift deeds were executed. It was also averred by them that they were Hindu and had a birth right in the entire property and none of the parties had any exclusive right over any part of the same till the same was partitioned, whereas Kabaz & Chandu alleged that the suit land was not ancestral property of Joint Hindu Family and alleged that the same was self acquired property of the parties. Kabaz & Chandu further averred that the parties are Gujjar by caste and are governed by Riwaz Zamindara Punjab now Haryana, Tehsil Panipat, District Karnal and according to which, a sonless male proprietor could gift away his land to any one of his near heir/ brother. On the basis of the pleadings of the parties, the following issues were framed in the suit filed by Chandan etc.:- 1. Whether the gift-deeds dated 28.1.87 and 8.5.87 alleged to have been executed by the defendant No.2 in favour of the defendant No.1 are illegal, void and without consideration as per the grounds taken in para No.1 of the plaint?OPP 2. Whether the suit land is in joint possession of the party (sic. parties) to the suit. If so to what effect?OPP 3. Whether the parties to the suit are in separate possession of specific khasra numbers of the total measuring 325 K- R.S.A.No.4119 of 2002 (O&M) -4- .... 8M?OPD 4. Whether the land measuring 325 K-8M is Joint Hindu Family ancestral property. If so, to what effect?OPP 5. Whether the parties are governed by Hindu Law and have got birth right in the entire property. If so to what effect?OPP 6. Whether the suit is not maintainable?OPD 7. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction?OPD 8. Whether the plaintiffs have no locus standi to file the present suit?OPD 9. Whether the plaint does not disclose any cause of action?OPD 10. Whether the details of fraud have not been given. If so to what effect?OPD 11. Relief. Whereas the pleadings of the parties in the suit filed by Kabaz and Chandu gave rise to the following issues:- 1. Whether the plaintiffs and the defendants No. 1 to 5 have been in exclusive possession of specific khasra numbers over the land measuring 325 K-8M as mentioned in para No.1 of the plaint?OPP 2. Whether the plaintiff No.1-Kabaz had become owner in possession of the land measuring 41K-8M as mentioned in point `B' of the headnote of the plaint by way of gift deeds R.S.A.No.4119 of 2002 (O&M) -5- .... dated 28.1.1987 and 8.5.1987 executed by the plaintiff No.2. If so, to what effect?OPP 3. Whether the suit is bad for mis-joinder of the parties?OPD 4. Whether the present suit is not maintainable?OPD 5. Whether the alleged gift deeds dated 28.1.1987 and 8.5.1987 are illegal and null & void as per the grounds taken in para No.3 of the written statement?OPD 6. Whether the suit property is Joint Hindu Family Coparcenary Ancestral Property of the plaintiffs and the defendants No. 1 to 5. if so, to what effect?OPD 7. Relief. Both these suits were consolidated by the Sub Judge Ist Class, Panipat (hereinafter described as `the trial Court') as the questions of facts as well as the suit property was common and the entire proceedings were directed to be taken in the suit filed by Chandan etc. After appraisal of the entire evidence on record, the trial Court found that the suit property was not the ancestral coparcenary property of Hindu Joint Family and that the gift deeds executed by Chandu in favour of Kabaz were legal and binding. Both the suits were accordingly dismissed vide judgment and decree dated 31.7.1995. Against the said judgment & decree, two separate appeals were filed – one by Mukhtiara, Bhartu, Jeeta and Dharam Singh and the second by Kabaz and Chandu. Since no findings were recorded on the issues framed in the suit R.S.A.No.4119 of 2002 (O&M) -6- .... of Kabaz etc., the Additional District Judge, Panipat (referred to hereinafter as `the first appellate Court') sought for the report of the trial Court thereon. After receipt of the report of the trial Court to which objections were also filed by Mukthiara etc. and after hearing the counsel for the parties, the first appellate Court dismissed the appeal as well as objections of Mukthiara etc., accepted the appeal filed in the suit of Kabaz etc. and restrained the defendants therein permanently from interfering in the possession of the plaintiffs over the suit property. This has resulted in the filing of these two separate Regular Second Appeals. Learned counsel for the appellants has contended that the suit property which was gifted away to Kabaz by Chandu, was ancestral in nature and could not have been alienated in such a manner. He further contended that Kabaz & Chandu had pleaded custom and by implication thereof, they had admitted that the suit property was ancestral and could have been disposed of only as per the custom and both the Courts below have gone wrong in not appreciating this admission regarding the ancestral nature of the suit property. It was argued that by virtue of the provisions of Section 7 of the Punjab Customs (Power to Contest) Act,1920 (for short, `the Act'), the moment a person pleaded custom, it implied that the property was admitted to be ancestral as a challenge to non-ancestral property was only precluded under the custom, and since Kabaz & Chandu had pleaded custom, it implied that the property was ancestral. He further argued that on the basis of the presumption that the suit property was ancestral and R.S.A.No.4119 of 2002 (O&M) -7- .... coparcenary in nature, Chandan etc. had acquired a right in it by birth in the family. In support of his contentions/ arguments, learned counsel for the appellants has placed reliance on the following judgments:- 1. Mela Singh and others Versus Gurdas , AIR 1922 Lahore 433 (F.B.); 2. Nathoo Lal Versus Durga Prasad, AIR 1954 S.C. 355; 3. State Bank of India Versus Ghamandi Ram(dead ) by his legal representative Gurbux Rai, AIR 1969 S.C. 1330; 4. Gurdial Singh etc. Versus Piara Singh etc., 1973 Cur.L.J. 529 (P&H); 5. Harnek Singh etc. Versus Pargat Singh (Major) etc., 1973 Cur.L.J. 864 (P&H); 6. Thamma Venkata Subbamma (dead) by LR Versus Thamma Rattamma and others, AIR 1987 S.C. 1775; 7. Darshan Singh Versus Ram Pal Singh and another, AIR 1991 S.C. 1654; 8. Gautam Sarup Versus Leela Jetly and others, 2008(7) S.C.C. 85; 9. Mihan and another Versus Inder and another, 2008(3) R.C.R. (Civil) 124 (P&H) (FB); and 10. Padmawati and others Versus Kulwant Rai and others, 2008 (1) R.C.R.(Civil) 605 (P&H)(SB). On the other hand, learned counsel for the respondents R.S.A.No.4119 of 2002 (O&M) -8- .... contended that Chandan etc. failed to even plead that the suit property was ancestral and, therefore, they were precluded from raising such a plea. He further contended that no such admission was made by Kabaz and Chandu in their written statement and merely because the custom was pleaded in the alternative, it does not imply that the suit property was admitted to be ancestral. It was argued that Chandan etc. themselves had pleaded that the suit property which was joint at one point of time, was partitioned amongst the brothers and all of them were in settled possession for the last 40-50 years and merely because it was not entered in the revenue record, would not mean that the partition which was effected by the parties, was non- existent. He defended the execution of the gift deeds by Chandu in favour of Kabaz as being valid documents and contended that even if the partition is to be ignored, at best, Chandan etc. can be said to be co-sharers in the suit property, but cannot question the gift deeds as one of the co-sharers willingly gave away his share to another. He,thus, prayed that the appeals be dismissed. To support his contentions,he placed reliance on a judgment of this Court in Ajmer Singh Versus Dharam Singh, 2006(2) R.C.R. (Civil) 541. I have thoughtfully considered the rival contentions and have gone through the whole record. In my opinion, the appeals are totally misconceived. The pleadings of the parties show that Chandan etc. had failed to plead ancestral nature of the suit property. They merely stated that the land devolved upon R.S.A.No.4119 of 2002 (O&M) -9- .... Chandan etc. and other co-sharers after the death of Surta, their father. There is no pleading that how the land devolved upon Surta. It is a settled principle of law that ancestral nature of a property has to be specifically pleaded by tracing its lineage. Merely because Kabaz and Chandu had pleaded custom does not imply that ancestral nature of the suit property had been admitted. In any case, as observed above, in the absence of any specific pleadings, such a plea as raised by Chandan etc. is totally without any merit. The entire case of Chandan etc. was based on such a supposition which can be termed to be fenciful and, therefore, the judgments which have been relied upon by the learned counsel for the appellants to support the same do not apply to the facts of the instant case. All the judgments relate to cases where the ancestral nature of property had been pleaded or was substantially in question, but, as observed earlier, in the instant case, no such plea exists. In the absence of any pleadings, I do not desire to travel into such a controversy to explore that the suit property is ancestral or not. The contention of the learned counsel for the appellants on this score is summarily rejected. The proposition that merely because a custom has been pleaded implies an admission of the ancestral character of the property can, at best, be dismissed by terming it preposterous. The law of pleadings stands crystalized enough to erase all ambiguities. A suppository of a fact can never be a replacement for an actual plea of a fact. The next question that is to be seen is as to whether the gift deeds were valid or not. Apart from the challenge on the aforesaid grounds, R.S.A.No.4119 of 2002 (O&M) -10- .... there is no other challenge. It was not the case of Chandan etc. that the gift deeds were the result of any fraud. It is in evidence that all the parties were in settled possession of their respective shares after they had mutually effected the partition. Even if the revenue authorities have not adhered to such a partition, the same has been respected by the parties. In Ajmer Singh Versus Dharam Singh (supra), a coordinate Bench has held that failure to seek affirmation of private partition from the revenue authorities, if otherwise proved on record, cannot be negated only for the reason of non-affirmation. On the basis of the law laid down in the above mentioned case, it is held that Chandu, being a co-sharer and in possession of his separate share, was very well within his right to bequeath his land in favour of Kabaz, the other co-sharer by way of the gift deeds in question. Such an action cannot be held to be bad in the eyes of law. As a consequence of the above discussion, I do not find any ground to interfere in the findings recorded by the first appellate Court as no question of law, much less a substantial question of law, has been shown to have arisen for consideration by this Court. Accordingly, the appeals are dismissed being devoid of any merit. March 23,2010 ( Mahesh Grover ) “SCM” Judge