RSA No.2359 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH. RSA No.2359 of 2009 Date of decision: 16.9.2010 Inder Paul Singh and anr. ...Appellants Versus Madan Paul Singh and others. ......Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr.Gaurav Sharma, Advocate, for the appellants. RAKESH KUMAR GARG,J. This is plaintiffs' second appeal challenging the impugned judgment and decrees of the Courts below whereby their suit for separate possession by way of partition of the suit property with further relief of permanent injunction restraining defendant No.1 to create any charge on the suit property was dismissed. As per the averments made in the suit, Ujjagar Singh and Pritam Kaur father and mother of the appellants died on 23.3.1967 and 1.11.1998 respectively. The property marked as CEFGHI was the ownership of the plaintiff-appellant and defendant-respondents No.1 and 2 in equal shares to the extent of 1/4th share each whereas the property marked as ABCD measuring 8 marlas was joint Hindu family property having been purchased in the name of their mother Pritam Kaur from the funds of the joint Hindu family. Pritam Kaur during her life time executed a will dated 21.4.1992 qua the property marked as ABCD in favour of Madan Paul Singh defendant-respondent No.1. On objection being raised by the family members property marked as ABCD was put into common hotch-potch and RSA No.2359 of 2009 2 defendant-respondent No.1 abandoned his ownership over the said property by ignoring the will dated 21.4.1992 with a clear intention to consider the aforesaid property to be joint property of the parties. An agreement dated 10.2.1995 was reduced into writing in this respect with the result that the plaintiff-appellants as well as defendant-respondents No. 1 and 2 were having 1/4th share each in the property shown as ABCD. It was further pleaded that in another property measuring 5 marlas which was owned by Ujagar Singh plaintiff-appellants, defendant-respondents including their sisters were owners in joint possession to the extent of 1/6th share each but the aforesaid property is still joint in between the parties. Since the plaintiff- appellants do not want to keep the property joint, the present suit was filed. Upon notice, the suit was contested by the defendant- respondents, inter alia, raising various preliminary objections. On merits, it was admitted that the suit property shown as CEFGHI was ownership of plaintiff-appellants and defendant-respondents No.1 and 2 in equal shares to the extent of 1/4th share. However, it was denied that the property marked ABCD was purchased from the joint funds of the Hindu family and that Pritam Kaur had illegally executed the sale deed dated 21.4.1992 in favour of defenant-respondent No.1 It was also denied that the property shown as ABCD was also put in common hotch-potch and that he had abandoned his ownership rights qua the property marked as ABCD by cancelling the sale deed dated 21.4.1992. It was also alleged that the property having been purchased from Pritam Kaur vide sale deed dated 21.4.1992 as Pritam Kaur had purchased the same with her own savings and ornaments and had every right to deal with the same in any manner she liked. It was further alleged that the agreement dated 19.2.1995 was not acted upon. It was denied that RSA No.2359 of 2009 3 defendant-respondents No. 3 and 4 had any right, title or interest in the suit property. On the contrary, it was alleged that defendant-respondents No. 3 and 4 had filed an affidavit before Assistant Collector Ist Grade,Khanna, submitting no objection in case the mutation was sanctioned on the basis of Will dated 21.12.1996 qua the property of Ujagar Singh in favour of plaintiff-appellants and defendant-respondents No.1 and 2 in equal shares. Defendant-respondent No.2 filed separate written statement alleging that he was the owner of the property marked as ABCD by way of adverse possession. It was further alleged that Pritam Kaur was not competent to sell the suit property to defendant-respondent No.1 and as such the Will dated 21.4.1992 was not binding on his rights. On merits, property shown as EFGHI was admitted to be the ownership of plaintiff- appellants and defendant-respondents No.1 and 2 in equal shares whereas property shown as AJXO was also stated to be of the ownership of plaintiff- appellants and defendant-respondents No.1 and 2 in equal shares on the basis of the will dated 21.12.1996 executed by Ujagar Singh in favour of plaintiff-appellants and defendant-respondents No.1 and 2. In the end, dismissal of the suit was prayed for. In the replication filed the averments made in the written statements were denied and those taken in the plaint were reiterated. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are entitled to separate possession by way of partition on the grounds as prayed for ?OPP 2. Whether the plaintiffs are entitled to permanent injunction as prayed for ?OPP 3. Whether the plaintiffs have not come to the court with clean RSA No.2359 of 2009 4 hands and have suppressed the true and material facts from the court ?OPD 4. Whether the plaintiffs have got no cause of action and locus standi to file the present suit ? OPD 5. Whether the plaint is not properly valued for the purpose of court fee and jurisdiction ? OPD 6. Relief. On appreciation of evidence and hearing learned counsel for the parties,the trial Court decided issues No.1 and 2 against the plaintiff- appellants. Issues No. 3 to 5 were decided against the defendant- respondents and consequently the suit was dismissed. While deciding issues No.1 and 2 the trial court specifically concluded that defendant-respondent No.2 failed to prove the fact that he perfected his title over the suit property marked as ABCD by way of adverse possession. The appeal preferred by the plaintiff-appellants against the aforesaid judgment and decree of the trial Court was also dismissed. Still not satisfied the plaintiff-appellants are before this Court through the instant appeal. Learned counsel for the appellants has vehemently argued before this Court that there was ample evidence on record to establish that the property marked as ABCD was purchased in the name of Pritam Kaur from the funds of joint Hindu family property and the same was put into the common pool by defendant-respondent No.1 and, therefore, the Courts below have erred at law while dismissing their suit as the sale deed dated 21.4.1992 (Ex.D1) in favour of defendant-respondent No.1 was of no value. Defendant-respondent No.1 had abandoned his ownership qua the property marked as ABCD by ignoring the sale deed dated 21.4.1992 with a clear RSA No.2359 of 2009 5 intention to treat the same to be joint property of the brothers i.e. the appellants and respondents No. 1 and 2 and the agreement dated 10.2.1995 (Ex.P3) was reduced into writing and as such the appellants are entitled to the decree as claimed. On the basis of the aforesaid argument, learned counsel for the appellants has contended that the following substantial questions of law arise in this appeal for consideration:- 1. Whether joint Hindu property purchased from joint fund can be transferred by one co-sharer in favour of another co- sharer by way of sale deed ? 2. Whether the judgments and decrees of the learned trial Court and learned first Appellate Court are against law and facts and deserve to beset aside ? I have heard the learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. Both the Courts below on appreciation of evidence have recorded a concurrent finding that the appellants have miserably failed to prove that the property marked as ABCD was joint property and all the four brothers i.e. plaintiff-appellants as well as defendant-respondents No. 1 and 2 and they failed to prove nucleus which formed the basis to purchase the said property by Pritam Kaur out of the joint Hindu family property funds. The agreement Ex.P3 by itself does not create any right, title or interest in favour of the plaintiff-appellants and defendant-respondents No.2 to 4 in respect of the property marked as ABCD,it is neither a relinquishment nor a family arrangement. Moreover, it was never intended to be a final document and as per the evidence available on record, it was entered only for a limited purpose. The plaintiff-appellants also failed to challenge the RSA No.2359 of 2009 6 correctness of the sale deed dated 21.4.1992 in favour of defendant- respondent No.1. The question whether the property marked as ABCD was joint Hindu ancestral property of the parties is a question of fact which has been answered against the plaintiff-appellants by the Courts below by recording a concurrent finding on the basis of evidence on record. In view of the overwhelming evidence available on record, the aforesaid finding of fact cannot be held to be perverse in any manner. Thus, no substantial question of law, as argued, arises in this appeal. No merit. Dismissed. (Rakesh Kumar Garg) Judge September 16, 2010 rk