RSA No.2074 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2074 of 2008 (O&M) Date of Decision:27.01.2009 Satinderjit Singh & Ors. ....appellants Versus Karnail Singh & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Ravi Sharma,Advocate for the appellants **** RAKESH KUMAR GARG J. C.M. No. 6270-C of 2008 For the reasons mentioned in the application delay of 23 days in refiling the appeal is condoned. C.M. disposed of. RSA No.2074 of 2008 This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that the sale deed executed on 05.11.1996 is null and void, without consideration and not binding upon the reversionary rights of the plaintiffs and plaintiffs No.2 and 3 are entitled to the maintenance by creating a charge on the property allegedly sold by the defendant No.3 with a consequential relief of permanent injunction restraining the defendants from taking possession illegally on the basis of the alleged sale deed, has been dismissed. In brief, plaintiffs filed a suit with the allegations that plaintiffs No. 1 and 2 are minor son and daughter of defendant No. 3 while plaintiff no.3 is wife of defendant no.3. Thus, they constituted a joint Hindu family RSA No.2074 of 2008 2 and land owned by defendant no.3 being ancestral at the hands of defendant no.3 was a joint Hindu family property. It was submitted that defendant no. 3 was a person of bad habits and a spend-thrift and was addicted to alcohol etc. Earlier also, he had sold agricultural holdings to one Satish Kumar. Similarly, defendant no. 3 was adamant to waste entire land. It has been submitted that Sh.Sunder Singh, father of defendant no.3, was an agriculturist and out of income of agricultural land and other funds, he purchased land vide sale deed dated 10.06.1958 from one Smt. Chameli however recorded the same in favour of his sons Rajinder Singh and Baldev Singh (defendants No. 3). At that time, defendant no. 3 was only one year old. Plaintiff no. 1 was submitted to have right by birth in the suit property while plaintiffs no. 2 and 3 have their right of maintenance under the Hindu Law. Thus, defendant no. 3 has no right to usurp and forfeit the legal rights of plaintiffs. Thus, sale deed executed by defendant no. 3 in favour of defendants no. 1 and 2 was submitted to have been got executed by playing fraud by defendants no. 1 and 2 upon defendant no. 3, who was a victim of vices. Thus, sale deed executed by defendant No. 3 in favour of defendants no. 1 and 2 was submitted to be without any consideration and without any legal necessity. No consideration was submitted to have been paid. Sale deed being without consideration was not binding on rights of plaintiffs. It was further submitted that being a fraudulent act, even mutation was not got sanctioned. Plaintiff no. 3 coming to know about the sale deed made a representation to Deputy Commissioner and Tehsildar etc. not to effect mutation. It has been submitted that defendant no. 3 was bound to maintain plaintiffs. Request being made to defendants not to get mutation sanctioned and not to dispossess them forcibly and getting no relief, plaintiffs filed suit for declaration challenging sale deed dated 05.11.1996 executed by defendant no. 3 to be null and void, without consideration and thus, not RSA No.2074 of 2008 3 binding on reversionary rights of plaintiffs, with a consequential relief of permanent injunction restraining the defendants from taking possession illegally. On notice being issued, defendant no. 3 did not contest and got himself proceeded ex parte. However, defendants no.1 and 2 appeared and filed written statement raising preliminary objections regarding maintainability of suit, cause of action, locus-standi, defendants no. 1 and 2 being bonafide purchaser for consideration, collusion between defendant no. 3 and plaintiffs, suit land being self-acquired property of defendant no. 3, suit land being self-acquired property of defendant no.3, estoppel and suit being false and frivolous etc. On merits, inter se relations between plaintiffs and defendant no. 3 were not denied. It was, however, denied that Sunder Singh was in possession of agricultural land and out of income of said Joint Hindu Family Property, purchased land in the name of defendant no. 3. The land was stated to be self-acquired property of defendant no. 3 and thus defendant no. 3 had a right to sell the same and did execute the sale deed for consideration. The sale deed was submitted to be legal and binding and executed on receipt of consideration of Rs.3 lakhs. It was denied that the suit land was ancestral. The allegation of defendant no. 3 being addicted to vices etc. was denied. The sale consideration of Rs. 3 lakhs paid was stated to be put in fixed deposit in a bank and thus, denying other allegations and submitting collusion between plaintiffs and defendant no. 3 and defendants no. 1 and 2 being bonafide purchaser for consideration and in possession of the suit land, dismissal of suit was prayed. From the pleadings of the parties, learned trial Court framed the following issues:- 1.Whether the sale deed dated 5.11.96 with regard to the RSA No.2074 of 2008 4 land in dispute is wrong, illegal, null and void, without consideration and is not binding upon the reversionary rights of the plaintiffs on the grounds taken in the plaint?OPP. 2.Whether the plaintiffs are entitled to a decree for permanent injunction against the defendants on the grounds taken in the plaint?OPP. 3.Whether the suit is not maintainable in the present form, as alleged?OPD 4.Whether plaintiffs have no locus standi to file and maintain present suit, as alleged? OPD. 5.Whether the property in dispute is self acquired property of defendant No. 3, if so, its effect? OPD. 6.Whether the suit has been filed in collusion with the defendant no. 3, if so, its effect? OPD. 7.Whether the plaintiffs are estopped from filing the present suit by their own act and conduct, as alleged? OPD. 8.Whether the suit is false, frivolous and defendants are entitled to special costs, as alleged? OPD. 9.Relief. Learned trial Court took up issues no. 1, 2, 5 and 6 together and decided the same against the plaintiffs. Issues No. 3, 4, 7 and 8 were decided against the defendants being not pressed and under issue of relief, the suit of the plaintiffs was dismissed. Aggrieved thereby, the plaintiffs filed an appeal which was dismissed by the District Judge, Ambala vide impugned judgment and decree dated 10.09.2007. While dismissing the appeal, the Lower Appellate Court observed as under: “The admission by plaintiff No.3 appearing as PW-1 that they were living separate from her father-in-law and brother-in-law RSA No.2074 of 2008 5 by itself loses significance of nucleus of HUF. There is no evidence that land, including suit land in the name of defendant No. 3, was ancestral. Onus was upon the plaintiffs to have proved that the land fell to defendant No. 3 by inheritance by three generations so as to give it a status of ancestral land. The admission by plaintiff no. 3 appearing as PW-1 that ancestral land was in the name of father-in-law, who had also sold and no evidence being led that land at the hands of defendant No. 3 was ancestral, no presumption of suit land being ancestral at the hands of defendant No. 3 and defendant No. 3 being 'Karta' with other plaintiffs being members of HUF arises. That besides plaintiffs have not challenged earlier sales and there is no evidence that earlier sales were for necessity of the family and that the present sale was without any necessity. Plaintiff No.3 further admitted in cross- examination that her husband (defendant No. 3) had opened a shop of oil cakes at Panjokhra. She also admitted that her husband had common sense and was mentally sound and could decide about his good or bad. Plaintiffs also admitted that she challenged the mutation before revenue authorities and was unsuccessful. Another facts which also cannot be lost sight that though, suit was filed by plaintiffs no. 1 and 2 being minor, however, plaintiff no. 3 admitted that plaintiff no. 1 was aged 23 years, whereas plaintiff no. 2 was aged 26 years. Though, plaintiff No. 3 as PW-1 admitted that she had disclosed this fact to her counsel but the fact remains that this was a material concealment of fact on the part of plaintiffs, which also disentitles them to the relief.” RSA No.2074 of 2008 6 Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellants. Undisputedly, the suit was filed by plaintiff No.1 and 2 being minors. However, at the time of filing the suit the plaintiff No.1 and 2 were aged about 23 and 26 years, respectively. Thus, a material fact was concealed by the appellants from the knowledge of the Court which disentitles them to any relief. Moreover, the said fact goes to the very root of the suit. Even otherwise, the Courts below recorded a concurrent finding of fact that plaintiffs have failed to prove that the suit land was ancestral at the hands of defendant No.3. Besides this, the appellants have not challenged the earlier sales made by defendant No.3 and there is no evidence that earlier sales were for legal necessity of the family and that the present sale was without any legal necessity. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 27.01.2009 neenu