R.S.A. No. 163 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 163 of 1988 Date of decision: 18.01.2010 Sarup Singh and others ....Appellants Versus Raghbir Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. K.S. Cheema, Advocate, for the appellants. Mr. G.S. Dhaliwal, Advocate, for the respondents. VINOD K. SHARMA, J.(ORAL) This regular second appeal is directed against the judgment and decree dated 5.8.1987 passed by the learned lower appellate Court, vide which the suit filed by plaintiff/appellants for declaration and joint possession was ordered to be dismissed. The plaintiffs filed a suit on the pleadings, that the land in dispute was ancestral coparcenary property of Ronak Singh alias Karam Singh, common ancestor of the parties. His sons, Raghbir Singh, Mehar Singh and Bachan Singh had 1/4th share each in the coparcenary property. On the death of Ronak Singh, each of three sons i.e. defendants No.1 and 2 plus Bachan Singh predecessor-in-interest of plaintiffs and defendant No.12, Darshan Singh son of his pre-deceased daughter and Pritam Kaur daughter of his pre-deceased daughter Bhan Kaur inherited 1/4th share in the coparcenary property in equal shares. It was claimed, that Bachan Singh father of the plaintiffs became owner of R.S.A. No. 163 of 1988 -2- the 1/4th share, which was his coparcenary property along with his sons i.e. plaintiffs No.1 to 4 and defendant No.15. Bachan Singh died in the year 1980 leaving behind plaintiffs No.1 to 4 and defendant No.15 and also his daughters defendants No.16 to 19. Each of his sons was, therefore, said to have 7/144 share in the coparcenary property. Besides, they also inherited 7/144th share of Bachan Singh their father along with the sons and daughters of Bachan Singh. Vide mutation No. 367, defendants No. 16 to 19 surrendered their share to the extent of 4/9 in favour of their brothers, who are plaintiffs and defendant No.15. Thus, all the plaintiffs along with defendant No.15 claimed their share to be 7/24. It was claimed, that the revenue authorities made wrong and false entries in the revenue record regarding ownership of defendants No.1 to 14. The entries were said to be illegal and inoperative against the rights of the plaintiffs and defendant No.15. As defendants No.1 to 14 refused to admit the claim of the plaintiffs, therefore, plaintiffs filed this suit. On notice, defendants No.1, 3, 5, 6 and 8 contested the claim by filing written statement wherein various objections were taken. The ownership claim of the plaintiffs to 7/24 share was denied. It was also denied, that the property was ancestral coparcenary property. The defendants also denied that Ronak Singh alias Karam Singh was the common ancestor of the parties and was holding coparcenary property. The case of the defendants was, that Ronak Singh was the exclusive owner of the property in question, and after his death the property in dispute was inherited by Raghbir Singh, Mehar Singh and Bachan Singh as his sons and Gulzar Kaur his daughter. Darshan Singh son of Jagjit Kaur, his pre-deceased daughter's son, and Pritpal Kaur daughter of R.S.A. No. 163 of 1988 -3- Bhan Kaur, his pre-deceased daughter's daughter, in equal shares to the extent of 1/6th share each, and mutation of inheritance No. 171 was duly entered and sanctioned accordingly in their favour on 23.11.1962 by the revenue authorities, which was never challenged. The ownership of all the heirs, who inherited the property of Ronak Singh, was reflected in the revenue record in the jamabandi for the year 1962-63. The defendants admitted that Bachan Singh was predecessor-in-interest of plaintiffs and defendant No.15. It was the case of the defendants that Gulzar Kaur daughter of Ronak Singh gifted away her 1/6th share in land in question in favour of defendants No.3 to 11. Darshan Singh defendant No.13 further sold his share i.e. 1/6th share in land in question, which was inherited from Ronak Singh in favour of defendants No.3 to 9 vide registered sale deed for a consideration of Rs.1.80 lac and mutation was sanctioned on 29.12.1978 in favour of defendants No.3 to 9 and those defendants continued in possession of the said land being bona fide purchasers. Pritpal Kaur defendant No.14 sold her share i.e. 1/6th share in the suit land in favour of defendants No.3 to 11 vide registered sale deed dated 7.6.1974, for a consideration of Rs.32,000/- and mutation was sanctioned in favour of the vendees. The transfer was said to have been effected to the knowledge of the plaintiffs and defendant No.15, their father Bachan Singh and defendants No.16 to 19 but they never chose to challenge this transfer. It was pleaded, that plaintiffs had no locus standi to file the suit. The suit was said to be not maintainable in present form. The suit was also said to be barred under Order 2 Rule 2 of the Code of Civil Procedure. The plea of estoppel was also raised. The other defendants in spite of service did not appear, and R.S.A. No. 163 of 1988 -4- were proceeded ex parte. In the replication, the averments made in the plaint were reiterated and those of written statement were denied. In the replication, plea was taken, that the sale deeds were null and void and inoperative against the rights of the plaintiffs. The plea of bona fide purchaser was disputed. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether Bachan Singh father of the plaintiffs had 7/24th share in the suit land? OPP 2. Whether Gulzar Kaur Darshan Singh, Pritpal Kaur were the owners of 1/6th shares each in the suit land? OPP 3. Whether Gulzar Kaur ever gifted her alleged 1/6th share of the suit land in favour of the defendants No.3 to 11? OPP 4. Whether Bachan Singh had knowledge of the alleged gift, sales? OPD 5. Whether the defendants No.3 to 9 are bona fide purchasers as alleged in the written statement? OPD 6. Whether the suit property is coparcenary property of the parties and if so its effect? OPD 7. Whether the plaintiffs have no locus standi to file the suit? OPD 8. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 9. Whether the suit is not barred by time? OPP 10. Whether the suit is barred u/o 2 rule 2 CPC? OPD 11. Whether the plaintiffs are legally estopped by their acts and conduct in filing the suit? OPD 11-A Whether the plaintiffs have got the land marked Z R.S.A. No. 163 of 1988 -5- mortgaged and redeemed from defendants 10 and 11? OPP 11-B Whether the amendment of the plaint is not in accordance with the applied for amendment and orders? OPD 12. Relief.” Issues No.1 and 6 were taken up together, and on appreciation of evidence, the learned trial Court was held that Bachan Singh, father of the plaintiffs, did not have 7/24th share in the suit land. It was also held, that the suit property was not a coparcenary Joint Hindu Family property of the parties. On issue No.2, in view of the findings recorded, that the property was not coparcenary property in the hands of Ronak Singh, it was held, that the land in the name of Ronak Singh was inherited by his six heirs to the extent of 1/6th share each. Gulzar Kaur daughter of Ronak Singh, Darshan Singh son of pre-deceased daughter of Ronak Singh and Pritpal Kaur daughter of pre-deceased daughter of Ronak Singh, were held to have become owner to the extent of 1/6th share in the land in dispute. This issue was also decided against the plaintiffs. On issue No.3 as to whether Gulzar Kaur ever gifted her 1/6th share of the suit land in favour of defendants No.3 to 11, it was held, that Gulzar Kaur never executed gift deed regarding her 1/6th in the land in dispute in favour of defendants No.3 to 11. This issue was decided against the defendants. Issue No.4 was also decided against the defendants, in view of the finding recorded on issue No.3, by holding that the gift by Gulzar Kaur was not proved in accordance with law. R.S.A. No. 163 of 1988 -6- Issue No.5 was decided against defendants No.3 to 9, for the reason that the defendants failed to prove the gift deed or the sale deed to prove that they were bona fide purchasers for consideration. On issue No.7 it was held, that the plaintiffs had right to file the suit. Issue No.8 was held in favour of the plaintiffs, as the defendants were not able to prove as to how the suit was not competent. The suit was held to be time barred. The finding recorded by the learned trial Court to hold that the suit was time barred, reads as under: - “After sanctioning the mutation in favour of the heirs of Ronak Singh their ownership was reflected in the revenue record Gulzar Kaur d/o Ronak Singh, Darshan Singh son of predeceased daughter and Pritpal Kaur daughter of predeceased daughter of Ronak Singh are also alleged to have sold their share in favour of the defendants. The ownership of the heirs of Ronak Singh on the death of Ronak Singh was admitted by Bachan Singh father of the plaintiffs and defendants no.1 to 19. He did not raise a little finger regarding the ownership of the daughter of Ronak Singh and the daughters of Ronak Singh asserted their right of ownership in respect of the land which was inherited by them and subsequently they are alleged to have sold their shares in favour of the defendants no.1 to 19 did not deny the right of his sisters and children of his predeceased sisters. He did not during his life time contest that the land in dispute being ancestral coparcenary property was required to devolve by way of survivorship and that alongwith his brothers had already acquired a right in the land held by Ronak Singh during his life time. He, R.S.A. No. 163 of 1988 -7- on the other hand, admitted the ownership of the other heirs of Ronak Singh. The right of Bachan Singh was, therefore, clearly and unequivocally threatened/invaded as soon as ownership of Gulzar Kaur, Darshan Singh and Pritpal Kaur was reflected in the revenue record in the year 1960. The present suit, therefore, could be filed within the period of 6 years from 1960, under Article 120 of the Limitation Act, 1908. The present suit having been filed in the year 1972 cannot be said to be within limitation in any manner. It is, therefore, held that the suit is not within limitation. This issue therefore, found and decided in favour of the defendants and against the plaintiffs.” Issue No.10 was decided in favour of the plaintiffs, as the defendants failed to prove as to how the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. Similarly, issue No.11 was also found against the plaintiffs, and it was held that the plaintiffs were estopped by their conduct from filing the suit, as the suit was filed after lapse of 21 years of opening of inheritance. Issue No.11-A was decided against the defendants and in favour of the plaintiffs. Issue No.11-B was not pressed. In view of the findings recorded above, the suit filed by the plaintiffs was dismissed. The learned lower appellate Court, on appreciation of evidence, documentary as well as oral, came to the conclusion, that the entire land in the hands of Ronak Singh was not ancestral and Joint Hindu Property. It was held, that as the ancestral and the other land was R.S.A. No. 163 of 1988 -8- so mixed up to carry out any distinction, therefore, the whole of the land was not ancestral coparcenary property, in view of the settled law. The reading of the judgment of the learned lower appellate Court further shows, that except for challenge to the finding on issue No.6, no other point was urged before the learned lower appellate Court. The findings on all the issues were confirmed and the appeal was dismissed. Mr. K.S. Cheema, learned counsel, appearing on behalf of the appellants, contended that this appeal raises the following substantial questions of law: - “1. Whether the Courts below have misread the documentary evidence on record? 2. Whether Ronak Singh received the property by survivorship and as such the property is ancestral? 3. Whether property put in hotch potch amounts to blending and whole of it is to be treated as ancestral? 4. Whether property, purchased from income of ancestral property, is ancestral? 5. Whether there is no limitation for suit on basis of title unless defendant proves adverse possession for more than 12 years? 6. Whether Ronak Singh treated his entire property as ancestral? 7. Whether judgment of learned Courts below is perverse?” In support of the substantial question of law, the learned counsel for the appellants contended that the learned Courts below have misread the oral and documentary evidence, in recording the finding that R.S.A. No. 163 of 1988 -9- the property in the hands of Ronak Singh was not coparcenary Joint Hindu Family Property. It was contended that the property was received by Ronak Singh by survivorship, therefore, was ancestral property in the hands of Ronak Singh. It was also the contention of the learned counsel for the appellants, that the property personally purchased was also from the funds of the ancestral property, therefore, it was also to be treated as ancestral property. It was, thus, claimed, that the substantial questions of law No.1 to 4 deserve to be decided in favour of the appellants and against the respondents. On consideration, I find no force in the contentions raised by the learned counsel for the appellants, as in order to prove that the property in the hands of Ronak Singh was coparcenary Joint Hindu Family Property, it was necessary to show, that the property was held by his father Rura. The evidence on record showed, that the land was originally held by Sahba, Rura, Dasondhi sons of Hoshisara son of Soma and Billu son of Soma in equal shares. On the death of Rura, land was inherited by Ronak Singh, Harnam Singh and Bakhtaur Singh. Biru son of Dasondhi and Chura son of Deva Singh also succeeded to the land of Dasondhi etc. Ronak Singh got separated from his brothers Harnak Singh and Bakhtaur Singh. The inheritance of Daya Kaur widow of Biru to the extent of 1/3rd share was also mutated in the name of Ronak Singh and inheritance of Baru son of Rama to the extent of ½ share was sanctioned in favour of Ronak Singh and Bakhtaur Singh son of Rur Singh. Similarly, inheritance of Chetu was mutated in name of Ronak Singh to the extent of 2/92 share and inheritance of Inder Devi wife of Chura Singh was also inherited by Ronak Singh to the extent of 1/6th R.S.A. No. 163 of 1988 -10- share. In view of positive evidence, it could not be said, that the entire land was coparcenary Joint Hindu Family Property. It is well settled law, that if the property, which is coparcenary Joint Hindu Family Property and which is mixed up in hotchpotch then whole of the property is to be treated as self-acquired property of the person and not coparcenary Joint Hindu Family Property. The substantial questions of law No.1 to 4, therefore, are answered against the appellants. On substantial question of law No.5, the learned counsel for the appellants contended, that the learned Courts below wrongly held the suit to be barred by limitation, as there was no limitation to file a suit on the basis of title, in absence of plea of adverse possession by the defendants, the suit should have been held to be within limitation. There is no dispute with the proposition of law raised. However, in the case, the claim was raised on the ground of property being coparcenary Hindu Joint Family Property and the challenge was also to inheritance. The suit was not filed purely on the basis of established title. This substantial question of law also deserves to be answered against the appellants, for more than one reasons. Firstly, for the reason that no such substantial question of law arises for consideration, as the suit was not based on title but to challenge the inheritance by Ronak Singh, after lapse of more than 21 years. Secondly, the finding of the learned trial Court holding the suit to be time barred, was not challenged before the learned lower appellate R.S.A. No. 163 of 1988 -11- Court, therefore, could not be challenged for the first time in this appeal. The findings of the learned Courts below, therefore, cannot be said to be perverse or that the entire property of Ronak Singh could not be treated to be ancestral, as contended. The substantial questions of law raised are answered against the appellants. No merit. Dismissed. No costs. (Vinod K. Sharma) Judge January 18, 2010 R.S.