IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 157 of 2002 Decided on: 26.07.2011 Palta & others …Appellants. Versus Gian Singh …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellants: Mr. R.K. Gautam, Senior Advocate, with Mr. Mehar Chand, Advocate. For the respondent: Mr. Jagdish Vats, Advocate. Deepak Gupta, J. (Oral) This Regular Second Appeal by the plaintiffs is directed against the judgment and decree dated 21.8.2001 passed by the learned District Judge, Shimla, whereby he modified the judgment and decree dated 30.10.1998 passed by the learned Sub Judge, Theog, partly decreeing the suit of the plaintiffs. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit for declaration that they are joint owners in possession of the suit land and that the gift deed dated 12.1.1993 executed by Smt. Nakati in favour of the defendant is illegal and void. The plaintiff are the sons, daughters and widow of Shri Parma, who was the son of Shri Ghalumbi. According to the plaintiffs, Shri Parma and Shri Ghalumbi had equal right in the suit land. After the death of Shri Ghalumbi, his property was mutated by his son Shri Parma and his widow Smt. Nakati in equal shares. The plaintiffs claim that since the property was ancestral and Shri Parma, being a coparcener, was already having half share in the land, the remaining half share could not have been transferred in favour of Smt. Nakati. It was further alleged that Shri Parma had filed a suit against Smt. Nakati and injunction had been passed directing Smt. Nakati to maintain status quo, but despite this, she executed a gift deed of a portion of the suit land in favour of the respondent and hence, the same is totally illegal. 3. The defendant denied that the suit land was ancestral or that Shri Parma was a coparcener having half share in the suit land. According to the defendant, Shri Ghalumbi was the exclusive owner in possession of the suit land during his life time and, therefore, after his death, his property was rightly inherited by his widow and son in equal shares. He also denied that any order of status quo was passed in the previous suit. -: 3 :- 4. The following issues were framed by the learned trial Court: “1. Whether Parma and Ghalumbi formed joint Hindu family? OPP. 2. Whether suit land is coparcenary property if so its effect? OPP. 3. Whether gift by Nakati in favour of defendant dated 12.1.93 is ineffective as alleged? OPD. 4. Whether plaintiffs are entitled to the relief of injunction? OPP. 5. Whether suit is bit by Order II Rule 2 C.P.C.? OPD. 6. Whether plaintiffs are estopped by their act/conduct? OPP. 6A. Whether Smt. Nakati had become the owner of the suit land by way of adverse possession as claimed? OPD. 6B. Whether the suit is not maintainable? OPD. 6C. Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP. 7. Relief.” 5. The learned trial Court found that the proeprty in question was not ancestral property and held that Smt. Nakati had executed valid gift deed in favour of the defendant. He, however, came to the conclusion that the plaintiffs are in possession of the suit land. He, therefore, partly decreed the suit of the plaintiffs and restrained the defendant from interfering in the suit land except in accordance with law. 6. As pointed out by the learned lower Appellate Court, the judgment of the learned trial Court is full of mistakes. Be that as it may, the learned lower Appellate Court, after -: 4 :- re-appraisal of evidence, came to the conclusion that the gift deed had been validly executed by Smt. Nakati. The learned lower Appellate Court came to the conclusion that the plaintiffs have miserably failed to prove that the land was ancestral or coparcenary property. It found that Ghalumbi had acquired proprietory rights on the basis of non-occupancy holding and there was no material on record to show that Parma had acquired right and interest in the land during the life time of his father. The gift deed was also proved by the respondent. The learned lower Appellate court came to the conclusion that the respondent/defendant had become joint owner of the land in view of the gift deed executed by Smt. Nakati and had a right to claim separate possession of his share by way of partition. Therefore, as such, the learned lower Appellate Court was justified in dismissing the appeal but modifying the operative portion whereby he held that since the plaintiffs have been found to be in possession of the suit land, they are entitled to protect their possession till they are dispossessed as a consequence of partition of the joint land holdings. 7. In view of the above, I find no merit in the appeal, which is accordingly dismissed. No order as to costs. (Deepak Gupta) Judge July 26, 2011 (rajni)