Regular Second Appeal No.1547 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1547 of 2009 (O&M) Date of Decision:-26.7.2011 Dedar Singh and another ---Appellants Versus Gurdeep Singh and others ---Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Manish Kumar Singla, Advocate for the appellants. Mr.Satbir Rathore, Advocate for the respondents. M ehinder S ingh S ullar , J. (Oral) Tersenessly, the facts, which require to be noticed for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, are that Dedar Singh and Amrik Singh sons of Kartar Singh appellant-plaintiffs (for brevity “the plaintiffs”) filed the suit for a decree of declaration, to the effect that they are the owners and in possession of 4/21st share, while defendant No.1 is owner and in possession of 2/21st share and defendant Nos.2 to 5 are owners and in possession of 1/21st share (1/84th share each) and the mutation entries regarding inheritance of Kartar Singh son of Ram Kishan, are wrong and are liable to be corrected, with a consequential relief of permanent injunction, restraining Gurdeep Singh son of Kartar Singh and others respondent-defendants (for short “the defendants”) from alienating the suit land in any manner. 2. The case set up by the plaintiffs, in brief in so far as relevant, was that they and defendant No.1 Gurdeep Singh are sons, defendant No.2 is widow and defendant Nos.3 to 5 are daughters of Kartar Singh son of Ram Kishan son of Faggu. Kartar Singh died in the month of January, 2004. The land to the extent of 1/3rd share in the name of Kartar Singh is the joint Hindu coparcenary property in Regular Second Appeal No.1547 of 2009 (O&M) -2- the hands of plaintiffs and defendant No.1 and the plaintiffs have right in it since their birth. The parties are governed by the Mitakshra Law of Banaras School. 3. Thus, the plaintiffs claimed that they, defendant No.1 and their father Kartar Singh were the joint owners to the extent of 1/12th share each, being coparcenars and after the death of Kartar Singh, they became the owners and in possession of land in dispute. The defendants were stated to have got and sanctioned the mutation in their names in connivance with the revenue staff in natural succession. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of declaration and permanent injunction against the defendants in the manner depicted hereinabove. 4. The defendants resisted the claim of the plaintiffs and filed their written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, concealment of facts, misjoinder and nonjoinder of necessary parties, cause of action and locus standi of the plaintiffs. According to the defendants that the property in dispute was not a Hindu ancestral coparcenary property, but in fact, it was self acquired property of Kartar Singh. After his death, all LRs inherited his self acquired property and became joint owners in natural succession. The mutation, to that effect, was rightly sanctioned by the revenue authorities, which is binding on all the parties. The plaintiffs were stated to have wrongly mentioned the respective shares of ownership of the property in dispute. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case. 6. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. Regular Second Appeal No.1547 of 2009 (O&M) -3- 7. The trial Court partly decreed the suit for declaration of the plaintiffs. However, the relief of permanent injunction was denied, by virtue of judgment and decree dated 31.10.2007. 8. Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was accepted and the suit filed by the plaintiffs was dismissed by the 1st Appellate Court, by way of impugned judgment and decree dated 24.1.2009 9. The appellant-plaintiffs did not feel satisfied with the impugned judgment and decree of the 1st Appellate Court and preferred the present appeal. That is how, I am seized of the matter. 10 After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the argument of the learned counsel that the property in dispute was the ancestral coparcenary property and since the plaintiffs and defendant No.1 were entitled to it, being members of joint Hindu family, so, the Ist Appellate Court committed a legal mistake in dismissing their (plaintiffs) suit, is not only devoid of merit but misplaced as well. 12. As is evident from the record that plaintiffs claimed that the suit property is their ancestral joint Hindu family property and they have right in it since their birth. The defendants managed the mutation in their favour after the death of Kartar Singh, by way of natural succession. On the contrary, the defendants have stoutly denied that the property in dispute was ancestral, but they reiterated that it was a self acquired property of Kartar Singh. 13. Above being the position on record, now the short and significant question, though important that arises for determination in this appeal is, as to whether the suit property is ancestral joint Hindu family property or it was a self acquired property of Kartar Singh ? 14. Having regard to the rival contentions of the learned counsel for the Regular Second Appeal No.1547 of 2009 (O&M) -4- parties, to me, the answer must obviously be in the negative, as the plaintiffs have miserably failed to prove that the property in dispute was their ancestral joint Hindu family property. 15. As is clear that the trial Court has held that the suit property is ancestral property, mainly on the ground that the same was inherited by Kartar Singh, father of the parties, from Ram Kishan son of Faggu. Here, to my mind, the trial Court slipped into a deep legal error in this regard, because in order to ascertain whether the property is an ancestral joint Hindu family property, the plaintiffs were legally required to prove that their grand-father Ram Kishan had also inherited the suit property from their fore-fathers, by means of inheritance and not otherwise. No cogent documentary evidence is forth coming on record, to prove that Ram Kishan son of Faggu, father of Kartar Singh, had also inherited the property in dispute from their fore-fathers. In the absence of the same, the property cannot possibly be held to be ancestral property in any manner. Thus, to me, the trial Court has committed a legal mistake in this respect, which was rectified by the first appellate Court, by virtue of impugned judgment dated 24.1.2009, the operative part of which is (para 16) as under:- “In this case, the plaintiffs have not produced any evidence that Ram Kishan has inherited the suit property from their forefathers by way of inheritance. In view of these facts, this argument is not available with the learned counsel for the respondent Didar Singh that the land in dispute was Joint Hindu Family Coparcenary Property in the hands of Kartar Singh. Even observations in the citation referred by him in the case of Smt.Dipo versus Wassan Singh and others (Supra) do not help him in the matter. In view of this, succession of the suit property has to go as per the provisions of Section 8 of the Hindu Succession Act. In this case the wife, sons and daughter of Kartar Singh were the class I heirs as described in the Schedule given under Section 8 of the Hindu Succession Act. The mutation has been rightly sanctioned in their favour in equal shares. The observations of the learned trial court that the property in dispute is Joint Hindu Family and Coparcenary Property and the same has been inherited by the plaintiffs in equal shares with respondent No.1 Gurdeep Singh to the Regular Second Appeal No.1547 of 2009 (O&M) -5- exclusion of female heir of Kartar Singh is not sustainable in the eyes of law and is set aside. Consequently, the relief of declaration and injunction as allowed by the learned trial court is also not sustainable under law. The findings of the learned trial court on issue No.1 are reversed. The findings of the learned trial court on other issues have not been assailed during the course of arguments, as such, the same are affirmed.” 16. As indicated earlier, once the plaintiffs have utterly failed to prove that the property in dispute was joint Hindu family coparcenary property in the hands of Kartar Singh, then naturally, his property would be deemed to be the self acquired property and was rightly inherited by his heirs in natural succession in this relevant connection. 17. Meaning thereby, the first appellate Court has rightly decided the real controversy between the parties. The learned counsel for the appellants did not point out as to how and in what manner, the impugned judgment and decree of Ist appellate Court are illegal and would invite any interference in this relevant direction. Thus, the impugned judgment and decree of Ist appellate Court are hereby maintained in the obtaining circumstances of the case. 18. No other legal point, worth consideration has either been urged or pressed by the learned counsel for the parties. 19. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is dismissed as such. (Mehinder Singh Sullar) 26.7.2011 Judge AS Whether to be referred to reporter?Yes/No