RSA No.770 of 2010 1 . IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.770 of 2010 (O&M) Date of Decision: 11.03.2010 Manvir Singh & Ors. ..Appellants Vs. Balvir Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.B.S.Sodhi, Advocate, for the appellant. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) CM No.2158-C of 2010 For the reasons stated in the application, civil misc. is allowed and the delay of 14 days in filing the appeal is condoned. RSA No.770 of 2010 2 RSA No.770 of 2010 The plaintiff/appellants by way of this regular second appeal have challenged the judgment and decree dated 26.08.2009 passed by the learned courts below vide which the suit filed by the plaintiff/appellants for declaration and separate possession, stands dismissed. The plaintiffs No.1 to 3 are minors and were under the care and protection of Smt. Manjit Kaur, plaintiff No.4, their mother. Plaintiff No.5 appointed plaintiff No.4 as her attorney. Pleaded case of the plaintiffs was that the suit land was originally owned by Lachhman Singh, common ancestor of the parties and after his death it was inherited by number of co-parceners. The partition was claimed by pleading, that the plaintiffs were members of joint Hindu coparcenary property. Learned courts below, recorded a concurrent finding of fact that the plaintiffs/appellants failed to prove that the property was joint Hindu family property, in which the plaintiffs had an interest as co- parceners. In order to come to this conclusion, the learned courts took note of the fact that in the suit for maintenance filed by Smt. Manjit Kaur and her children, against her father-in-law, her own witness had admitted the fact that the property in dispute, was self-acquired property of Pritam Singh. Not only this, learned courts also took note of the fact that in the revenue record Pritam Singh, Dilawar Singh and Iqbal Singh along with Harbhajan Singh, Balwinder Singh, Hardev Singh and Kulvir Singh were recorded to be co-owners of the suit property. In the revenue record shares RSA No.770 of 2010 3 of the three brothers were described differently and not in the same proportion. The learned courts below, held that had the land been joint Hindu family coparcenary property then the shares would not have been described differently. Therefore, the three brothers namely Pritam Singh, Dilawar Singh and Iqbal Singh would have either inherited the land in equal shares or the land would have been in the name of Karta. Not only this, the learned courts further held that though the claim of the plaintiff/appellants was based on the plea, that Lachhman Singh was their common ancestor from whom the land was inherited, however, in the evidence led by the plaintiffs there was no mention of Lachhman Singh in the revenue record. The learned court further held that in the revenue record parentage of Pritam Singh, was recorded as son of Kirpa Singh son of Phuman Singh. The suit was dismissed by holding that the property in dispute was not joint Hindu family coparcenary property. Mr.B.S.Sodhi, learned counsel for the appellants, contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of Pedigree table pleaded by the plaintiff/appellants and thus, perverse? 2. Whether the sale of the suit land by Pritam Singh was without legal necessity and therefore, not binding on the rights of the plaintiffs? RSA No.770 of 2010 4 In support of the substantial questions of law, referred to above, learned counsel appearing on behalf of the appellant, referred to Pedigree table pleaded in the plaint, to contend that once it was shown that the land was inherited from Lachhman Singh, their common ancestor, property was required to be treated a joint Hindu coparcenary property, as there is presumption of jointness of joint Hindu family. The contention of the learned counsel for the appellants was, that the learned courts below have misread the pleadings of the parties to record a finding that the property in dispute was not joint Hindu coparcenary property. This contention of the learned counsel for the appellants cannot be accepted. The Pedigree table pleaded by the plaintiff/appellants, was required to be proved by evidence. Concurrent finding of fact has been recorded, that even though main nucleus was claimed to be Lachhman, but his name did not figure in the revenue record, produced by the plaintiffs in support of their case. The fact that Pritam Singh, Dilavar Singh and Iqbal Singh, were joint in possession of their particular shares, could lead to a conclusion, that even though the property was joint, it stood partitioned and ceased to be joint Hindu family property, in view of para 223 of the Principles of Hindu Law, by S.T. Desai (Sixteenth Edition). On the second substantial question of law, learned counsel for the appellants, contended that the courts below failed to notice that the sale RSA No.770 of 2010 5 was without legal necessity and therefore, not binding on the rights of the plaintiff/appellants. This plea again is misconceived. Once the property was held not to be joint Hindu coparcenary property, no legal necessity was required to be proved, as the person holding property in his own right, could sell it even without legal necessity. The substantial questions of law, framed are decided against the the appellants. No merit. Dismissed. 11.03.2010 (Vinod K.Sharma) rp Judge