RSA No. 1902 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1902 of 1986 Date of decision: August 8, 2011 Goverdhan Dass ...Appellant Versus Ashok Kumar and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Ms. Savita Tanwar, Advocate, for Mr. Vikas Singh, Advocate, for the appellant. None for the respondents. GURDEV SINGH, J. (Oral) This second appeal has been preferred by Goverdhan Dass— appellant/defendant No.2, against the judgment and decree dated 22.3.1986 passed by the Additional District Judge, Jalandhar, vide which she accepted the first appeal preferred by Ashok Kumar and Raj Kumar—respondents No. 1 and 2/plaintiffs, against the judgment and decree dated 26.9.1984 passed by the Sub Judge Ist Class, Phillaur, and decreed the suit of the plaintiff for declaration to the effect that the sale deed dated 19.10.1979 executed by Charanji Lal—respondent No. 3/defendant No.1 in favour of defendants No. 2 is illegal, null and void, inoperative and not binding upon the plaintiffs. The plaintiffs filed the suit challenging the alienation of the shop and the house in dispute, situated in the abadi of the village Sarhal RSA No. 1902 of 1986 2 Mandi, Tehsil Phillaur, District Jalandhar, by defendant No.1 in favour of defendants No. 2 by means of sale deed dated 19.10.1979 for a consideration of Rs. 6,000/-. They pleaded in their plaint that they are the sons of Vishwa Nath son of Charanji Lal defendant No.1 and defendant No.2 is the other son of defendant No.1. All of them constitute a joint Hindu Family and defendant No.1 is the 'Karta' thereof. The property in dispute is ancestral joint Hindu family and they have acquired title therein by virtue of their birth. Thus, they have acquired equal share in the property alogwith defendants and other members of the coparcenary. This property was never owned by defendant No.1 as exclusive owner and the same was inherited by that defendant. He had no legal right to alienate the same in favour of defendant No.1 and, as such, the sale deed dated 19.10.1979 is not binding upon them. That sale deed is illegal and void. The suit was contested by the defendants. In their written statement, they admitted their relationship with the plaintiffs and the execution of the sale deed dated 19.10.1979 by defendant No.1 in favour of defendant No.2. They denied the other contentions and, inter-alia, pleaded that they and their fore-father are governed by the customs of agriculturists of Jalandhar district in the matter of ownership, succession and alienation. They are not being governed by the Hindu law. The shop and the house in dispute were the self-acquired properties of defendant No.1. The property was purchased in an open auction by that defendant and he himself constructed the shop thereon. Being the sole owner, he could have sold these properties to defendant No.2. The plaintiffs have no locus standi to file the suit and the same does not lie in the present form. The parties are living separately for last more than 30 years. Defendant No. 2 is the RSA No. 1902 of 1986 3 bonafide purchaser and the sale in his favour is protected under Section 41 of the Transfer of Property Act. On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiffs and defendants constitute a JHF and the property in dispute is ancestral co-parcenary property ? OPP 2. Whether the sale deed dated 19.10.1979 executed by defendant No.1 in favour of defendant No.2 is illegal, null and void and not binding on the rights of the plaintiffs as alleged ? OPP 3. Whether the plaintiffs have no locus standi to file the suit ? 4. Whether the defendant No.2 is bonafide purchaser or consideration without notice and is protected under Section 41 of the T.P. Act ? OPD 5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ? OPD 6. Relief To succeed in the suit, plaintiff No.1 examined himself as PW- 1, Vidya Rattan (PW-2) and Bawa Ram (PW-3). On the other hand, defendant No.1 entered the witness box as DW-1. After going through that evidence and hearing learned counsel for both the sides, the trial court decided issues No. 1 to 3 against the plaintiffs and issue No.5 in their favour. No finding was recorded on issue No.4 on the ground that the same had become redundant. In view of the findings on issues No. 1 to 3, the suit RSA No. 1902 of 1986 4 of the plaintiff was dismissed. I have heard learned counsel for defendant No.2/appellant. It has been submitted by the learned counsel for defendant No.2/appellant that the findings of the first appellate court are based upon misreading of evidence and wrong application of Hindu law. From the oral and documentary evidence produced by the defendants, coupled with the admission made by the plaintiff No.1 and their witnesses, it stands proved that the property in dispute was purchased by Charanji Lal in court auction and was never inherited by him from his father or grand father. Therefore, his sons did not acquire any interest in this property by virtue of their birth. It was never a joint Hindu family coparcenary property. It also stands proved from the evidence that the parties did not constitute a joint Hindu family and they are separate in residence and mess for the last more than 30 years. She prayed that the appeal be accepted and the suit of the plaintiffs be dismissed. In view of these submissions of the learned counsel for the appellants and the grounds of appeal, the following substantial questions of law arise in the present appeal:- 1. Whether the finding of the first appellate court that the property in dispute was joint Hindu family coparcenary property is perverse and based upon misreading of the evidence ? 2. Whether the plaintiffs acquired any interest in this property by virtue of their birth ? When defendant No.1 entered the witness box as DW-1, he categorically stated that he had purchased the property in dispute in the RSA No. 1902 of 1986 5 court auction regarding which sale certificate Ex. D.1 was issued. After purchasing this property, he constructed a shop thereon. He had kept written account of the expenses of that construction. He proved on record those accounts as Ex. D.2. This statement of the defendant was never challenged during his cross-examination. Rather, it was suggested to him by the plaintiffs themselves that this house was purchased in the open auction and that suggestion was duly admitted by him. It was stated by Ashok Kumar—plaintiff (PW-1) that the property in dispute is their ancestral property which has been inherited from their fore-fathers. Similar statements were made by Vidya Rattan (PW-2), who is the third son of defendant No.1, and Bawa Ram (PW-3), but when they were cross-examined, they admitted that this property was purchased by defendant No.1 in the court auction. It is also admitted by them that a writing is inscribed on the shop in dispute itself, which reads as under:- “Pandit Charanji Lal Garg Magh Shudi & 2015 Sambat.” It also stands proved from the evidence of the parties that the father of defendant No.1 died 70 years before his statement was recorded in the Court i.e. 1984. Thus, father of defendant No.1 died somewhere in the year 1914. The property in dispute was purchased in the Court auction in the year 1983. From the evidence of the plaintiffs it cannot be concluded that there was any such nucleus of joint Hindu family from the income of which the property in dispute was purchased. Therefore, it cannot be held that the property in dispute was the joint Hindu family coparcenary property of the parties. A wrong finding to that effect was recorded by the first appellate court and the same cannot be sustained. When, it was not joint Hindu family coparcenary property, there was no question of the plaintiffs RSA No. 1902 of 1986 6 acquiring any right therein by birth. From the evidence produced by the defendants, coupled with the admission made by the plaintiff No.1 and their witnesses, it stands proved that the property in dispute was the self-acquired property of defendant No.1. Therefore, he had every right to alienate the said property. The sale deed dated 19.10.1979 cannot be held to be void or illegal. Therefore, both the above questions are answered against the plaintiff. The findings recorded to the contrary by the first appellate court are hereby reversed. In the result, this appeal is hereby accepted. The judgment and decree dated 22.3.1986 passed by the Additional District Judge, Jalandhar, is set aside and the suit of the plaintiff is dismissed. Records of the lower court be returned forthwith. August 8, 2011 (GURDEV SINGH ) prem JUDGE