R.S.A.No. 2018 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 2018 of 2009 (O&M)
Date of decision: 7.9.2009
Sital Singh
......Appellant
Versus
Harminder Kaur and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. B.S.Jaswal, Advocate,
for the appellant.
***
SABINA, J.
Plaintiff Sital Singh filed a suit for declaration with
permanent injunction, which was dismissed by the Civil Judge
(Jr.Divn.) Dasuya vide judgment and decree dated 19.10.2004. In
appeal, the said judgment and decree were upheld by the Additional
District Judge, Hoshiarpur vide judgment and decree dated
28.1.2008. Hence, the present appeal.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. Briefly stated, the averments contained in the
plaint are that plaintiff is the son of defendant No.1, who
is grand father of defendant No.2. Father of defendant
R.S.A.No. 2018 of 2009 (O&M) 2No.2 has since died and he is the only male member of
his father Jagat Singh. Defendant No.2 is minor and has
been sued through Smt.Harminder Kaur, his mother and
natural guardian who has got no adverse interest. The
plaintiff and defendants No.1 and 2 are members of Joint
Hindu Family and defendant No.1 is Karta of the same.
The parties are governed by the Mitakshara school of
Hindu Law in the matter of alienation and succession.
Land measuring 12 kanals 6 marlas being 2565/6160
share of land measuring 61 kanals 12 marlas comprised
in Khewat No.4158/1602261 vide Jamabandi for the year
1995-96 in Hindu Joint family ancestral coparcenary
property in the hand of defendant No.1, in which, the
plaintiff and defendant No.2 have got right and title by
birth in equal share to that of defendant No.1. The
defendant no.1 has got no right or authority to alienate
the suit land or to damage its nature without the consent
of the plaintiff or except legal necessity or for the benefit
of the estate. Defendant No.1 has sold major portion of
the suit land without the consent of the plaintiff and
without legal necessity and without the benefit of the
family. Now defendant No.1 is going to sell the suit land
to Gurdev Singh without the consent of the plaintiff and
without any legal necessity. The plaintiff requested the
R.S.A.No. 2018 of 2009 (O&M) 3defendant No.1 not to sell away the suit land but he
refused. Hence, the plaintiff has filed this suit.
3. In respondent to the notice issued by the
learned lower court, the defendants No.1 and 2 appeared
and filed written statement by taking preliminary
objections on the ground that the plaintiff has no cause of
action to file the present suit and that the suit is not
maintainable. On merits, it has been submitted that the
suit land is the self acquired property in the hands of
defendant No.1 and as such, he has every right to deal
with the suit property being absolute owner. Moreover,
defendant No.1 had to give the borrowed amount, spent
on the marriage of his sons and daughter including the
marriage of the plaintiff. Defendant No.1 is looking after,
and is also bearing expenditure on all family and relatives’
functions whereas the plaintiff has fallen to bad habits.
Remaining averments have been denied alleging the
same to be wrong and the defendants accordingly,
prayed for the dismissal of the suit with costs.
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled to declaration
as prayed for? OPP
2. Whether the suit property as detailed in the
R.S.A.No. 2018 of 2009 (O&M) 4head note of the plainti is Hindu Joint Ancestral
coparcenary property and is jointly owned by the
plaintiff and defendant No.1 and 2? OPP
3. Whether the plaintiff is entitled to permanent
injunction restraining the defendant No.1 from
alienating suit land and from changing its nature in any
manner till the partition of the suit property? OPP
4. Whether the plaintiff has got no cause of
action to file the present suit? OPD
5. Whether the suit is not maintainable in the
present form? OPD
6. Relief. “
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal is devoid of any merit and
deserves to be dismissed.
The plaintiff had filed a suit for declaration to the effect
that the land in dispute was Hindu joint family ancestral coparcenary
property of the parties and hence, defendant No.1 had got no right or
authority to alienate the same. However, the plaintiff failed to
establish that the suit property was ancestral property in the hands of
defendant No.1.
Learned Additional District Judge in the impugned
judgment has observed that the only document placed on record was
a copy of jamabandi for the year 1960-61 and on the basis of the
R.S.A.No. 2018 of 2009 (O&M) 5
said sole document, it could not be established by the plaintiff that
the suit property was ancestral property in the hands of defendant
No.1. No excerpts was proved on record to substantiate the plea of
the plaintiff that the suit property was coparcenary property in the
hands of defendant No.1.
In appeal, the plaintiff moved an application under Order
41 Rule 27 for permission to lead additional evidence. The said
application was rightly dismissed by the Appellate Court vide
separate order dated 28.1.2008 as the plaintiff had failed to establish
that the documents sought to be proved on record by way of
additional evidence could not be produced by him during trial despite
due diligence.
In these circumstances, both the Courts below, after
appreciating the evidence led by the parties on record, have arrived
on a finding of fact that the plaintiff had failed to establish that the
suit property was ancestral property in the hands of defendant No.1.
The said finding of fact arrived at by the Courts below cannot be
interfered with by this Court in appeal.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
September 07, 2009
anita
.