RSA No.1042 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.1042 of 2009 DATE OF DECISION: 19 th APRIL, 2011 Nirwant Kaur & others .... Appellants Versus Pargon Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. K. S. Dhillon, Advocate for the appellants. Mr. R. S. Bajaj, Advocate for the respondents No.1 to 5. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by plaintiffs No.1, 3 and 4 having remained unsuccessful in both the courts below. Suit was filed by appellants and respondent No.6 (plaintiffs) against Mit Singh Sandhu Defendant No.1 (since deceased and represented by the plaintiffs as his legal representatives) and against respondents No.1 to 5 as defendants No.2 to 6. Zora Singh Sandhu who was husband of plaintiff No.1 and father of plaintiffs No.2 to 4 was son of Mit Singh Sandhu defendant No.1. Zora Singh Sandhu died in the year 1992 in America. Plaintiffs are his legal heirs. Plaintiffs' case is that suit land i.e. half share in 38 Kanals 6 Marlas land and the entire 35 Kanals 10 Marlas land described in the plaint was ancestral coparcenary property in the hands of defendant No.1 who sold it RSA No.1042 of 2009 (O&M) -2- to defendants No.2 to 6 by way of five sale deeds executed in July and August 1996. The said sale deeds have been challenged in the suit being illegal and null and void. It was pleaded that in oral settlement/partition, the suit land fell to the share of Zora Singh Sandhu and he cultivated the same and after his migration to America in the year 1992, plaintiffs have been cultivating the suit land. Consequently, defendant No.1 was not competent to sell the suit land. It was also alleged that if the oral partition is not proved, the suit land being joint Hindu family coparcenary property, defendant No.1 could sell the same for legal necessity only but the impugned sale deeds have been executed without consideration or legal necessity. Possession of the suit land was also not delivered to vendee defendants No.2 to 6. Accordingly plaintiffs sought declaration that they are owners in possession of the suit land and the impugned sale deeds are illegal and null and void being without consideration and legal necessity. Permanent injunction was also claimed by the plaintiff. Defendants contested the suit and broadly denied the plaint allegations. It was denied that suit land was ancestral or joint Hindu family coparcenary property in the hands of defendant No.1. The suit land was never partitioned between Zora Singh Sandhu and defendant No.1. Alleged oral partition was denied. It was pleaded that suit land was self-acquired property of defendant No.1. Chetu brother of defendant No.1 had sold the suit land to Joginder Singh etc. vide sale deed dated 03.06.1959 registered on 26.06.1959, which was preempted by defendant No.1. Impugned sale deeds are legal and valid. Defendants No.2 to 6 have purchased the suit land measuring 35 Kanals 10 Marlas vide impugned sale deeds for consideration and are bona fide purchasers thereof. They are owners in possession of the said land. Various RSA No.1042 of 2009 (O&M) -3- other pleas were also raised. Learned Additional Civil Judge (Senior Division), Phillaur vide judgment and decree dated 11.10.2005 dismissed the plaintiffs' suit. First appeal preferred by plaintiffs No.1, 3 and 4 has also been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 19.07.2008. Feeling aggrieved, plaintiffs No.1, 3 and 4 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that the suit pertains to two pieces of land i.e. half share in 38 Kanals 6 Marlas and the entire 35 Kanals 10 Marlas land. Learned counsel for the appellants vehemently contended that only 35 Kanals 10 Marlas land has been sold to defendants No.2 to 6 whereas half share in 38 Kanals 6 Marlas land remained with defendant No.1 and in view of his death, the same has been inherited by the plaintiffs and consequently the suit deserves to be decreed qua the said land. There is considerable merit in the contention. Even defendants have pleaded in their written statement that defendants No.2 to 6 have purchased only 35 Kanals 10 Marlas land in suit from defendant No.1 vide five impugned sale deeds. Defendant No.2 to 6 have not claimed any right, title or interest in half share of 38 Kanals 6 Marlas land in question. Consequently, plaintiffs' suit deserves to be decreed regarding the same. The aforesaid aspect was not canvassed before the courts below and from the plaint, it appears that the plaintiffs themselves pleaded that the entire suit land had been sold by defendant No.1 to defendants No.2 to 6 by way of five impugned sale deeds. However, defendants RSA No.1042 of 2009 (O&M) -4- themselves pleaded that defendants No.2 to 6 had purchased only 35 Kanals 10 Marlas land in suit, as is also evident from the sale deeds in question. Consequently the suit deserves to be decreed regarding the half share in 38 Kanals 6 Marlas land in question. Dismissal of the suit regarding the said land also by the courts below is, therefore, unsustainable. However, it has to be clarified that aforesaid half share in 38 Kanals 6 Marlas land in question shall accrue for the benefit of all the legal heirs of Mit Singh Sandhu-defendant No.1 since deceased. Substantial question of law relating to aforesaid land arises for determination in the instant second appeal and the same is accordingly answered in favour of plaintiffs. Now the dispute remains regarding 35 Kanals 10 Marlas land in suit. Plaintiffs have miserably failed to prove that suit land is ancestral coparcenary property in the hands of defendant No.1. Reliance was placed on excerpt Exhibit P-11, but the said excerpt has not been proved by examining the concerned revenue official who prepared the same. To overcome this lacuna, appellants have moved CM No.3038-C of 2009 for additional evidence for examining the concerned revenue official to prove the excerpt. However, this application cannot be accepted because the trial court specifically observed that the excerpt has not been proved by examining the concerned revenue official, but inspite thereof, the plaintiffs did not seek examination of the concerned revenue official in first appeal. Consequently, in second appeal, plaintiffs cannot be permitted to fill up this lacuna by way of additional evidence. Accordingly the CM No.3038-C of 2009 for additional evidence is dismissed. However, even considering the excerpt Exhibit P-11, it is not RSA No.1042 of 2009 (O&M) -5- proved that suit land was ancestral or coparcenary property in the hands of defendant No.1. To arrive at this conclusion, trial court has recorded detailed reasons in paragraph 16 of its judgment. This excerpt refers to mutation No.7268 regarding sale made by Joginder Singh in favour of Mit Singh Sandhu defendant No.1. It would mean that land purchased by Mit Singh Sandhu as mentioned in the aforesaid mutation was his self-acquired property. There is also a mutation No.5518 regarding exchange of property. Old Khasra numbers mentioned in the excerpt have also not been linked with ownership of father of defendant No.1. There is also reference to mutation No.2102 regarding sale of some land made by Karam Singh father of defendant No.1. There is also reference to inheritance mutation of Buta Singh grand father of defendant No.1, in favour of Dutta, Gangi and Harnama and not in favour of Karam Singh father of defendant No.1. Thus even from the excerpt, it is not proved that suit land measuring 35 Kanals 10 Marlas was ancestral coparcenary property in the hands of defendant No.1. Concurrent finding to the aforesaid effect recorded by the courts below is, therefore, fully justified. Plaintiffs have failed to establish that suit land was ancestral coparcenary property in the hands of defendant No.1. Consequently, plaintiffs cannot succeed regarding suit land 35 Kanals 10 Marlas, which was sold by defendant No.1 to defendants No.2 to 6 by way of five impugned sale deeds. Finding of the courts below regarding the same does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this appeal regarding said part of the suit land. For the reasons aforesaid, the instant second appeal is allowed RSA No.1042 of 2009 (O&M) -6- partly and judgments and decrees of the courts below are set aside. Suit is decreed partly relating to half share in 38 Kanals 6 Marlas land described in first part of head note of the plaint and accordingly it is declared that plaintiffs along with the other legal heirs, if any, of defendant No.1 Mit Singh Sandhu are owners in possession of half share of said 38 Kanals 6 Marlas land. Defendants No.2 to 6 are restrained from interfering in possession of the plaintiffs over the said land. However, the suit regarding remaining suit land measuring 35 Kanals 10 marlas remains dismissed. (L. N. MITTAL) JUDGE 19th April, 2011 'raj'