IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CM Nos. 3125-C & 3126-C of 2009 and
R.S.A. No. 1084 of 2009
Date of decision: 6-3-2009
Puran Singh ... Appellant
versus
Gura Singh and others ... Respondents
THE HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Mr. A.P.Jagga, Advocate,
for the applicant-appellant.
...
ARVIND KUMAR, J:
CM Nos. 3125-C and 3126-C of 2009:
For the reasons mentioned in the applications, the delay
of 20 days in filing and 178 days in refiling the appeal is condoned. CMs
stand disposed of.
RSA No. 1084 of 2009:
Appellant before this Court was the plaintiff who has
been non-suited by the Courts below in a suit for declaration filed by him.
Plaintiff in the suit pleaded that the suit property is the
Joint Hindu Family Property of the parties, having respondent No.1, Gura
Singh @ Gurdit Singh as Karta. The said land had been inherited by him
from his great grand-father Ishar Singh. Defendants 2 and 3, Parveen Singh
and Prabhjot Singh respectively, were the grand-sons of said Gura Singh @
Gurdit Singh. Gura Singh @ Gurdit Singh in order to deprive the plaintiff
of his legal right and interest in Joint Hindu Family Property as co-parcener,
executed sale-deed dated 6.8.1999 and mortgage-deed in favour of
defendants 2 to 4 without any legal necessity and therefore, the same could
not bind the right, title and interest of the plaintiff. The defendants further
threatened the plaintiff to dispossess him forcibly from the suit land. The
defendants were further requested many times to cancel the sale-deed but to
no avail. Accordingly, the plaintiff filed suit for declaration to the effect
that the suit land is a co-parcenary joint Hindu Family property and he is a
coparcener in respect thereof having equal share with other coparceners, and
R.S.A. No. 1084 of 2009 -2-
that sale-deed dated 6.8.1999 in respect of land measuring 21 kanals
13 marlas and mortgage in respect of land measuring 5 kanals out of the
joint property in favour of defendant No.4 were illegal and without legal
necessity, with consequential relief of permanent injunction restraining the
defendants from illegally and forcibly dispossessing the plaintiff from the
suit land.
Upon notice of the suit, defendants 1 to 3 filed written
statement wherein it was admitted that defendants 2 and 3 were the grand-
sons of defendant No.1 Gura Singh @ Gurdit Singh; however, they denied
that the character of the suit property as coparcenary joint hindu family
property, besides denying the other averments in the plaint. Trial Court
upon appreciation of the evidence adduced on record dismissed the suit of
the plaintiff vide judgment and decree dated 29.9.2001. Thereafter, an
appeal was preferred by the plaintiff against the said judgment and decree.
During the pendency of the appeal before the first appellate Court, an
application under Order 41 rule 27 of the Code of Civil Procedure, was also
preferred by the plaintiff seeking to produce pedigree-table in order to show
that the suit property was coparcenary joint hindu family proper but the
same was rejected by the first appellate Court holding that the proof of
pedigree-table in absence of any evidence to show character of the suit
property as coparcenary joint hindu family property, was inconsequential.
The first appellate Court then vide judgment and decree dated 6.2.2008
dismissed the appeal of the plaintiff. Hence, the present second appeal by
the plaintiff.
Both the Courts below on appreciation of evidence adduced by
the parties have concurrently held that the plaintiff has failed to prove that
the suit property was the Joint Hindu Family Property of the parties and
therefore, sale-deed dated 6.8.1999 so executed by defendant No.1 in favour
of defendants No.2 to 4 could not be cancelled. The Courts below have
observed that the only evidence brought by the plaintiff in support of his
plea is his self-serving solitary statement as PW-1 in which he has stated
that the suit property was ancestral and he was one of the co-sharers and
that his father Gura Singh @ Gurdit Singh(respondent No.1) had sold the
property but in cross-examination, he has admitted that Ishar Singh had died
before he(plaintiff) attained the age of discretion and even before his birth
R.S.A. No. 1084 of 2009 -3-
and that at the time of death of his grand-father,Ishar Singh, his father was
only 9/10 years old and therefore, in such situation, he cannot be expected
to know as to from where the property was acquired by his grand-father or
father. Moreover, the plaintiff also failed to place on record any copy of
Jamabandi or Khasra Girdawari to prove his possession over the suit
property; whereas on the contrary, the defendants produced sufficient
evidence in the shape of sale-deed Exhibit D-1 and copy of Jamabandi,
Exhibit D-2, showing that possession of the suit property had been delivered
to defendants 2 to 4 whereafter mutation in their favour was also sanctioned
which the plaintiff never challenged. Nothing has been shown that the
findings of fact so recorded by the Courts below suffer from any infirmity or
are contrary to the record. No question of law, much less substantial, arises
in the present appeal.
Consequently, the appeal being without any merit is hereby
dismissed.
( ARVIND KUMAR )
March 6, 2009 JUDGE
JS