RSA No.1488 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1488 of 2010 (O&M) Date of decision: 7.7.2010 Kamlesh and others ......Appellant(s) Versus Ram Avtar and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Mohit Garg, Advocate for the appellants. Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below dismissing their suit for declaration to the effect that they were having pre existing right being heirs on the basis of family settlement and were owners in possession of suit land as detailed in the head note of the suit, in equal share; the property being ancestral and they being legal heirs of defendant No.1, the other defendants have no connection/right whatsoever over the suit property and the entries regarding ownership in the revenue record were liable to be corrected in their favour and the sale deed dated 21.5.2002 and the mutation sanctioned on 15.2.2007 on the basis of the above said sale deed in favour of the defendants being illegal were liable to be set aside and had no effect on the rights of the appellants, with consequential relief of injunction restraining the defendants from taking illegal possession of the suit land or causing any damage to the crops cultivated by them as owners over the suit land and from alienating the same in any manner. Brief facts as pleaded by the appellants are that they are son and daughters of respondents No.1 and were owners in possession in equal share of the suit land on the basis of a family settlement. It was RSA No.1488 of 2010 (O&M) 2 further alleged that they were having pre-existing right in the suit land being coparceners. Defendant No.1 was a man of bad habits and because of that he used to sell the ancestral property without any legal or domestic necessity and had sold away ancestral land situated at village Kudhal as detailed in the plaint. He refused to give maintenance allowance and neglected the plaintiffs completely. A family settlement took place and it was decided that the plaintiffs will be owners in possession of equal share of suit land measuring 57 kanals and 16 marlas being the coparceners. It was further alleged that defendant-respondent No.1 handed over the ownership and possession of the suit property to the plaintiffs in equal share at the spot and took the responsibility of getting the land transferred in the name of the plaintiffs in the revenue record. Thus, on the basis of family settlement and having birth right, the plaintiffs were owners in possession of the suit land. It was further alleged that defendant No.1 entered into an agreement to sell the land measuring 16 kanals compromised in Khasra Nos. 198//13(8-0), 18(8-0) with defendants No.2 and 3 after taking nominal amount for his bad habits of drinking without disclosing anything to the plaintiffs and executed the sale deed No.548 dated 21.5.2002 in their favour without any right and legal necessity. Defendants No.2 and 3 in connivance with the revenue staff and without disclosing anything to the plaintiffs secretly got mutation entered and sanctioned on 15.7.2002 in their names. Certain other allegations were levelled regarding the price of the land and non receipt of any sale price alleging that defendant-respondent No.1 had no right of ownership or possession and he was not the absolute owner of the land because as per the family settlement he had already given the suit land to the plaintiffs. The defendant-respondents were asked to admit the claim of the plaintiffs but they refused to do so. Hence, the RSA No.1488 of 2010 (O&M) 3 present suit. Upon notice, written statement was filed on behalf of defendant No.1 raising various legal objections. On merits, it was asserted that land measuring 16 kanals as aforesaid was sold by him for good management of the property and legal necessity of the family to pay various loans and to repair his house situated in village Dhana. It was further submitted that land measuring 20 kanals comprised in Khasra No.198//15(8-0), 16/1(4-0), 17(8-0) was given to Virender Kumar his son by way of registered release deed dated 25.11.2002 and possession of the above said land was also handed over to him. The possession to the extent of half share of the house was also given. It was further alleged that Raj Bala wanted to grab the property of defendant No.1 and an FIR was also registered in this regard. On merits, it was admitted that the plaintiffs were his sons and daughters, however, it was denied that land in question was ancestral but it was stated that the same was self acquired property. It was further denied that the plaintiffs were owners in possession of the suit property. It was denied that he was a drunkard person and having bad habits. It was further stated that the land in dispute was sold by defendant No.1 in favour of defendants No.2 and 3 for legal necessity. Story stated by the plaintiffs was false. It was denied that he neglected his wife and children. Other assertions of the plaint were denied and dismissal of the suit was prayed. In a separate written statement filed on behalf of defendant No.2 various preliminary objections were raised. It was asserted that defendant No.1 sold land in dispute to defendant No.2 and his brother Bhale Ram-defendant No.3 for legal necessity and they were owners in possession in equal share. It was further alleged that land in dispute was not ancestral property of the plaintiffs and defendant No.1 and the plaintiffs RSA No.1488 of 2010 (O&M) 4 had no birth right in the suit property. Defendant No.1 was a gentleman and was not a victim of bad habits. It was further urged that after selling the land in village Kudal, defendant No.1 had purchased a tractor for agriculture purposes and the land in question was sold by him for legal necessity which was recited in the sale deed as he was to pay debts and he had also incurred expenses for repair of the house. It was further asserted that defendants No.2 and 3 had taken physical possession of the land in dispute from defendant No.1 at the time of sale and they were owners in possession of the same. It was also asserted that the land in dispute was not ancestral property of defendant No.1 as initially the property belongs to Maharaja Faridkot and father of defendant No.1 was a tenant under him and later on, he purchased the land of his tenancy and became the owner. It was further stated that there was no alleged family settlement between the plaintiffs and defendant No.1. Possession of the plaintiffs over the suit land was denied. It was further stated that they had paid the total amount of consideration to defendant No.1 at his house in village Dhana Kalan and mutation was sanctioned in an open session. The registration of the sale deed was done on the market value of the property in dispute and as per collector rate. Other assertions of the plaintiffs were denied and dismissal of the suit was prayed for. After hearing learned counsel for the parties and evaluation of the material on record, the trial Court dismissed the suit of the plaintiffs with costs. Dissatisfied with the impugned judgment and decree, the appellants filed an appeal before the Lower Appellate Court. While dismissing the appeal, the Lower Appellate Court held that the appellants have failed to prove the land to be ancestral. It was further held that even if assuming that the land was proved to be ancestral, RSA No.1488 of 2010 (O&M) 5 the same was sold for legal necessity and the trial Court rightly dismissed the suit of the appellants. Still not satisfied, the appellants have filed the instant appeal. Learned counsel for the appellants has vehemently argued that the property in dispute was ancestral and findings of the Courts below are perverse. It is an admitted fact that respondent No.1 inherited the suit property from his father Gokal and therefore, the property was ancestral qua rights of the plaintiffs in his hands. It has further argued on behalf of the appellants that it is a fact that whole of the land in village Kudal was sold by defendant No.1 and he also sold the land in dispute, in violation of the family settlement reached between the plaintiffs and defendant No.1. Learned counsel has further argued that once there was a family settlement, the appellants became the owners of the suit property and therefore, respondent No.1 was not competent to execute the sale deed in favour of respondents No.2 and 3 and thus, judging from any angle, the judgment and decrees of the Courts below were liable to be set aside on the following substantial questions of law which arise in this appeal: “I. Whether the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property? II. Whether the sale made by the respondent no.1 is a valid sale in the circumstances when he was not the owner in possession of the suit land as the ownership in possession has been handed over to the appellants by way of family settlement? III. Whether the appellant have become owner in possession of the suit land by way of family settlement arrived in the presence of Biradari Panchayat and the RSA No.1488 of 2010 (O&M) 6 factum of which family settlement has been itself admitted to by the respondents? I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. Both the Courts below on appreciation of evidence have recorded a finding of fact that the appellants have failed to prove that the property in dispute was ancestral qua their rights as there is no documentary evidence on record except mutation P-11, a perusal of which reveals that father of defendant No.1 had transferred 20 kanals of land to his wife Shanti by way of a Civil Court decree which was inherited by defendant No.1 and thus, the land in dispute cannot be held to be ancestral at his hands and was his self acquired property. It may also be noticed that while non-suiting the appellants, the Courts below have also held that the property in dispute was sold by defendant No.1 for legal necessity. The aforesaid finding of fact has been recorded by the Courts below on the basis of evidence on record. Learned counsel for the appellants could not dispute the correctness of the aforesaid findings with regard to legal necessity by pointing out any evidence on record contrary to the aforesaid findings. Otherwise also the finding with regard to legal necessity of defendant No.1 is essentially a question of fact and keeping in view the evidence placed on record, the aforesaid finding cannot be termed as perverse. Thus, in view of the aforesaid discussion, I find no merit in this appeal. No substantial question of law arises. Dismissed. July 7, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.1488 of 2010 (O&M) 7 RSA No.1488 of 2010 (O&M) 8