R.S.A. No. 4830 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4830 of 2010 (O&M) Date of decision : 25.1.2011 Ram Ratti and another ......Appellants Versus Anoop Singh and others .......Respondents ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. K.S. Malik, Advocate, for the appellants. **** SABINA, J. Plaintiffs-Annop Singh and Dharam Pal filed a suit for declaration with consequential relief of permanent injunction. The case of the plaintiffs, in brief, was that they were owners in possession of the suit property in terms of the judgment and decree passed in Civil Suit No.726 of 1996 titled as Anup Singh & Dharampal Vs. Umrao Singh decided on 25.5.1996. Although, the plaintiffs had handed over a copy of the judgment and decree to the patwari for sanction of mutation in their favour, but the mutation had been sanctioned in favour of 7 persons i.e. plaintiffs and defendants equally. Defendant No.1 was proceeded ex-parte as she failed to appear despite service. R.S.A. No. 4830 of 2010 (O&M) 2 Defendants No.2,3 and 7, in their written statement, averred that the suit property was owned by Umrao Singh. He was the absolute owner of the suit property and after his death all his heirs had inherited the suit property. Mutation No.2516 had been correctly sanctioned on 29.9.1999. The decree dated 25.5.1996 was not binding on the defendants. Moreover, the decree had not been duly registered. Defendants No.4 to 6, in their written statement, averred that the suit property was ancestral property in the hands of Umrao Singh. It was inherited by the parties in equal shares and mutation No.2516 dated 29.9.1999 had been legally sanctioned in favour of all the legal heirs. The alleged decree had been illegally passed without the knowledge of the answering defendants. No family settlement had taken place between the parties. Plaintiffs had inherited 1/7th share in the suit property after the death of their father. The alleged decree was not a registered one and hence was liable to be ignored. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owner in possession of the suit property detailed in para No.1 of the plaint ? OPP. 2. Whether the mutation and entries in the Jamabandi in the names of defendants are illegal, null and void ad not binding upon the plaintiffs ? OPP. 3. Whether the plaintiffs are entitled to the relief sought for ? OPP. 4. Whether the plaintiffs have no locus-standi to R.S.A. No. 4830 of 2010 (O&M) 3 file the present suit ? OPD. 5. Whether the suit is not maintainable in the present form ? OPD. 6. Relief.” Vide judgment and decree dated 27.10.2009, the trial court decreed the suit of the plaintiff and set aside the entries in the jamabandi qua the said property and restrained the defendants from dispossessing the plaintiffs or from alienating the suit property. Aggrieved by the said judgment and decree, defendants No.2 to 7 preferred an appeal. District Judge, Rohtak vide judgment and decree dated 27.9.2010 partly allowed the appeal and held that plaintiffs had become owners of 12 kanals 5.7 marlas of land each. The share of Randhir Singh, defendant, was 8 kanals 3.8 marlas in the suit land. The successor-in-interest of Ajit Singh had 8 kanals 3.8 marlas of share in the suit land. In view of the decree suffered by Umrao Singh in favour of the plaintiffs, the daughters of Umrao Singh would not be entitled to any share in the suit property. The land sold by Deepa and others vide sale deed Ex.D-1 shall be excluded after the sanctioning of mutation. Aggrieved by the said judgment and decree, defendants No.2 and 3 have filed the present appeal. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. Umrao Singh was recorded as owner of 40 kanals 19 marlas of land. He had four sons i.e. the plaintiffs, defendant No.7 and Ajeet Singh. Umrao Singh died in the year 1996. During his life time, Umrao Singh R.S.A. No. 4830 of 2010 (O&M) 4 suffered a decree in favour of the plaintiffs qua 30 kanals 3 marlas of land on 25.5.1996. So far as the decree executed by Umaro Singh in favour plaintiffs is concerned, the same is liable to be set aside in case it is a result of fraud and misrepresentation. However, the defendants had failed to establish that the decree had been obtained by fraud and misrepresentation. The Courts below after appreciating the evidence, led by the parties on record, have given a finding of fact that the suit property was ancestral property in the hands of Umrao Singh. The present case relates to before the amendment in Section 6 of the Hindu Succession Act. In these circumstances, Umrao Singh became karta of the family and his sons became members of the coparcenary by birth. Umrao Singh, thus, could not transfer the share of the other co-parceners by way of decree but could suffer the decree qua his share in the suit property. In these circumstances, the learned First Appellate Court rightly held that the decree suffered by Umrao Singh qua his share was liable to be upheld as Umrao Singh had appeared before the Court and had filed his written statement admitting the claim of the plaintiffs. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 25, 2011 Anand