HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 51 of 2001 Reserved on:29.3.2011 Decided on: 4.4.2011 Bakshi Ram ……Appellant. Versus Pawan Kumar and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.N.K. Thakur, Advocate. For respondent No.1: Mr.Ajay Sharma, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree passed by the learned Additional District Judge, Kangra at Dharamshala (Camp at Una), dated 7.12.2000, vide which he partly affirmed the judgment and decree, dated 16.12.1993, of the Court of learned Sub Judge Ist Class (II), Una, H.P. 2. Briefly stated, the facts of the case are that respondent No.1, hereinafter also referred to as the plaintiff, filed a suit for declaration and injunction as against respondents No.2 and 3, hereinafter also referred to defendants No.1 and 2 and as against the appellant, hereinafter referred to as defendant No.3. It was alleged by the plaintiff that he is co-owner in possession being coparcener of the land measuring 16 kanal and 8 marla situated in village Bhadsali, as detailed in the plaint. ______________________________________ Whether the reporters of the local newspapers may be allowed to see the judgment? Yes. - 2 - The plaintiff had challenged the sale deed dated 24.5.1983 executed by defendants No.1 and 2 in respect of the suit land in favour of defendant No.3 being illegal, void and ineffective. It was alleged that defendants No.1 and 2 alongwith their mother Rama Devi executed the sale deed in favour of defendant No.3 with a view to deprive the plaintiff’s legal and valuable rights in the suit land which he acquired by way of birth. It was further alleged that the sale deed was without consideration and illegal and void. The plaintiff also pleaded that since defendant No.3 is threatening to dispossess the plaintiff from the suit land, hence the suit filed by the plaintiff for declaration and permanent injunction. 2. Defendants No.2 and 3 filed a joint written statement alleging that the suit property was exclusively owned and possessed by defendants No.1 and 2 and the plaintiff had no right or connection with it. The plaintiff was neither the co-sharer nor coparcener in the property in dispute. Defendants No.2 and 3 denied the ancestral nature of the suit land. They also denied the possession of the plaintiff over the suit land. It was pleaded that the suit property was purchased by defendant No.3 through registered sale deed for valuable consideration. Defendant No.3 also pleaded that he is the bonafide purchaser for value without notice. It was also submitted that defendant No.3 took all the necessary precautions and made a bona fide enquiry and then purchased the suit land. It was also - 3 - pleaded that defendants No.1 and 2 were fully competent to alienate the suit property. 3. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the suit land is an ancestral and coparcenary property of plaintiff and defendant No.1 and 2? OPP 2. Whether the plaintiff and defendants no.1 and 2 are the members of the Joint Hindu Family and are coparceners as alleged? OPP 3. Whether the sale deed dated 24-5-1983 is without consideration and is fictitious as alleged? OPP 4. Whether the plaintiff has no cause of action? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the plaintiff is estopped by his act and conduct? OPD 7. Whether the defendants are entitled to special costs, as alleged? OPD 8. Relief. 4. Parties led their evidence and the learned trial Court vide its impugned judgment decided issues No.1 to 7 in favour of the plaintiff and as against the defendants and consequently the suit of the plaintiff was decreed in full. On appeal by defendants No.2 and 3, the appeal was partly accepted by the learned Additional District Judge, who affirmed the judgment of the learned trial Court in regard to declaration, but the findings in regard to grant of an injunction in favour of the plaintiff were set aside. - 4 - 5. The present appeal was admitted on the following substantial questions of law: “(1) Whether in the facts and circumstances of this case grand-son, in the presence of his father, will not acquire any right in the property succeeded by his father form his grand-father? (2) Whether in the facts and circumstances of this case, the contesting respondent could be held to be co-owner/coparcener in the property subject matter of dispute? (3) Whether in the facts and circumstances of this case, the suit could be legally maintained by the plaintiff without impleading his grand-mother, who was party to the joint sale deed, as party? 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that this fact was not proved that the suit property was a coparcenery property. There was no challenge to the earlier sales made by defendants No.1 and 2 and, therefore, the plaintiff is precluded from filing the suit. It was also submitted that the suit is collusive in between the plaintiff and defendant No.1, his father. Defendant No.3 is a bona fide purchaser and as such the sale cannot be declared as invalid. It was also argued that the suit was not in time and as such the findings of the learned trial Court to the contrary are liable to be set aside. - 5 - 8. On the other hand, the learned counsel for respondent NO.1 supported the impugned judgment for the reasons given therein. 9. On appraisal of the record, it is clear that there are concurrent findings of both the courts below based upon oral as well as documentary evidence led by the parties that the suit property was coparcenary in the hands of defendants No.1 and 2 in which the plaintiff being the son of defendant No.1 had a right by his birth. I need not refer to the evidence again since both the courts below had referred to the oral as well as documentary evidence and had come to the conclusion and no infirmity could be pointed out in the said findings recorded by the courts below and as such these are liable to be affirmed. 10. In so far as the question as to whether the plaintiff had a right in the land in regard to the share of his uncle also, I agree with the submissions made that the plaintiff could not have acquired any right in the share inherited by his uncle and as such the alienation made by his father only could be challenged in so far as his share was concerned. He will inherit the property on the death of his father and the sale shall be deemed to be invalid to the extent of the share of defendant No.1 on his death. The property will, therefore, revert back to the reversioner on the death of the original owner defendant No.1 and to that extent the sale can be said to be valid. - 6 - 11. In regard to the findings that the sale deed was without consideration or that the defendant was a bona fide purchaser, a perusal of the written statement filed by defendant No.3 will show that he had pleaded to the extent only that he was a bona fide purchaser for value but there were no specific pleadings that the sale was for legal necessity and for that matter an issue was framed by the learned trial Court in regard to the fact as to whether the sale was for consideration as issued No.3 and the findings have also been recorded therein. In so far as the other claim is concerned, even if there were pleadings to this effect in regard to the legal necessity or so or bona fide purchaser and no issue was specifically claimed in that regard, the said issue shall be deemed to have been abandoned by defendant No.3. In so far as issue No.3 is concerned, it has been clearly observed by the learned courts below that the appellant/defendant No.3 had not appeared in the witness box and as such the sale in question cannot be said to be for consideration and those findings are liable to be affirmed. 12. In regard to the findings qua limitation, both the learned courts below have clearly held that the suit was within time taking the cause of action from the date of knowledge or interference and the mere fact that the suit was filed beyond three years of the sale is not sufficient to hold that the plaintiff had the knowledge or he could challenge within three years of the execution of the sale deed and those findings are liable to be affirmed. - 7 - 13. In regard to the sale made by the mother of defendants No.1 and 2, the learned Additional District Judge had discussed this point in paras 26, 27 and 28 of the judgment and had concluded that in so far as the sale in respect of the share of the widow of Sant Ram, namely, Ram Devi and mother of defendants No.1 and 2 is concerned, the same cannot be challenged under the customary law and it cannot be held that such an alienation by a female is without legal necessity. Once the learned Additional District Judge had come to this finding and had concluded that the sale by the said Ram Devi was invalid, he could not have granted the relief of declaration in favour of the plaintiff in regard to her share also. I am not considering this question as to whether being a female, she had not inherited the share of her husband since it was a coparcenery property in which she had no share, but the fact remains that the alienation was also made by her apart from defendants No.1 and 2 and in such circumstances, she was required to be impleaded as a party and no relief could have been granted in that regard until and unless she was impleaded as a party by the plaintiff. The sale deed Ext.D- 1 was admittedly executed by her also as one of the co- sharers. Once she was one of the vendees, until and unless she had been impleaded as a party, no relief could have been granted as against her in the absence of her having been impeladed as a party. Therefore, the sale made by defendants No.1 and 2 and Smt.Ram Devi to the extent of the share of Smt.Ram Dei i.e. 1/3rd share can also be said to be - 8 - invalid and, therefore, the plaintiff had no right and as such the said sale in favour of the defendant No.3 can be said to be valid to the extent of the share of Ram Devi since it was never challenged by the plaintiff. In so far as the contention is concerned that some previous sales were effected by defendant No.1 and these were not challenged by the plaintiff, this do not lead to the inference that the present sale in question cannot be challenged by the plaintiff and this does not preclude the plaintiff from filing the suit challenging the alienation in question. 14. It follows from the above discussion that the sale made by defendant No.1 in favour of defendant No.3 can be said to be valid to the extent of his share only and that right will accrue to the reversioners, the present plaintiff only, on the death of his father. In so far as the sale by his uncle and mother are concerned, they cannot be declared to be invalid. The learned Additional District Judge had rightly held that there was nothing to show the possession of the plaintiff over the suit land and therefore, the relief of permanent injunction was not rightly granted by the learned Additional District Judge and those findings are liable to be affirmed. 15. In view of the above discussion, the appeal filed by the appellant is partly allowed, as detailed above. However, the parties are left to bear their own costs. April 4, 2011. (V.K. Ahuja), (tilak) Judge.