IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 762 of 2007
Date of Decision : July 17, 2009
Bhagmal
...Appellant
Versus
Ram Kishan and others
....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Surinder Dhull, Advocate for
Mr. M.K. Sangwan, Advocate
Mr. Jaswant Jain, Advocate
T.P.S. MANN, J.
Suit for declaration filed by the plaintiff-appellant that
the decree dated 17.1.1995 in Civil Suit No. 698 suffered by
defendant No. 3 in favour of defendants No. 1 and 2 upon which
mutation regarding transfer of ownership was sanctioned, was totally
wrong, against law, illegal, without jurisdiction, null and void and
not binding upon the plaintiff and liable to be set aside, was
dismissed by Civil Judge (Senior Division), Rewari on March 07,
2005, which judgment was upheld in appeal by Additional District
Judge, Rewari on April 29, 2006. Aggrieved of the same, the
plaintiff has filed the present second appeal under Section 100 of the
Code of Civil Procedure.
R.S.A. No. 762 of 2007 -2-
Admittedly, Chhanna-defendant No.3 is an issueless
proprietor. According to the plaintiff, the suit property held by him
was not the ancestral property of the said defendant but his self
acquired/absolute property. Therefore, no family settlement could
have taken place regarding the suit property. Moreover, defendants
No.1 and 2, who were nephews of defendant No.3, did not have any
pre-existing right in the aforementioned self acquired property of
defendant No.3. The so-called family settlement could not have
taken place without impleading all the members of the family,
including the plaintiff, who was brother of defendant No.3.
Therefore, the plea of the family settlement on the basis of which
decree dated 17.1.1995 was obtained by defendants No.1 and 2, was
false and frivolous. Even if the said decree was taken as such, it had
created the right in favour of defendants No.1 and 2 for the first time
and, therefore, required registration, which was not done. Therefore,
it was not binding upon the plaintiff.
The relationship of the parties is not disputed and so also
the ownership-cum-possession of the suit property by defendant
No.3. The plaintiff had examined PW1 Bhoop Singh son of Ram
Kumar, who knew both the parties. Said Bhoop Singh unequivocally
deposed before the trial Court that the plaintiff, defendant No.3 and
father of defendants No.1 and 2 got separated many years ago when
R.S.A. No. 762 of 2007 -3-
their father suffered a decree in their favour. All the brothers
became separate in mess and business. While the plaintiff with his
family was residing separately from his brothers for the last 25/30
years, defendant No.3 and father of defendants No.1 and 2 were
residing together, having common mess and residence. Defendant
No.3 was being looked after by his brother and his sons. Chhanna-
defendant No.3 while appearing as DW3 also deposed to the same
effect that he was living with defendants No.1 and 2 who were his
nephews. On the other hand, the plaintiff had given him beatings for
which he was also convicted by the Court.
In view of the above circumstances, it could not be said
that defendants No. 1 and 2 had no pre-existing right in the property
of defendant No.3 and, therefore, they could not have entered into
any family settlement. Thus, defendant No.3 could suffer a decree
in favour of his nephews in terms of the family settlement.
The plaintiff failed to bring on record any evidence that
defendant No.3 was incompetent to suffer the decree or he was
incapable of rational understanding or not in a disposing mind at the
time of suffering the decree in favour of his nephews.
Aforementioned Bhoop Singh-PW1 had also deposed that defendant
No.3 was a man of full understanding, who had been attending to his
daily activities, besides visiting various places.
R.S.A. No. 762 of 2007 -4-
In view of the above, findings arrived at by the learned
Courts below in dismissing the suit, cannot be said to be either
erroneous or perverse. Those findings do not suffer from any
illegality or infirmity. No question of law, much less substantial
questions of law, as claimed by the appellant, arises for
consideration in the present second appeal. Accordingly, the appeal
is dismissed.
( T.P.S. MANN )
July 17, 2009 JUDGE
satish