Punjab-Haryana High Court
Hukam Chand And Another vs Chander Singh And Others on 10 August, 2009
Author: Sabina
Bench: Sabina
Regular Second Appeal No.2981 of 2009(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No. 2981 of 2009 (O&M)
Date of Decision: August 10, 2009
Hukam Chand and another ...........Appellants
Versus
Chander Singh and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.J.V.Yadav, Advocate for the Appellants.
**
Sabina, J.
Plaintiffs filed a suit for declaration and permanent injunction. The suit of the plaintiffs was dismissed by the Additional Civil Judge (Senior Division) Rewari vide judgment and decree dated 8.4.2008. The appeal filed by plaintiffs was dismissed by the Additional District Judge, Rewari vide judgment and decree dated 25.2.2009. Hence, the present appeal.
The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under:-
" In brief, the plaintiffs' case is that the parties to the suit are the members of joint Hindu family. It has been averred that the suit property is a joint ancestral coparcenary property, thus, the plaintiffs are having pre-existing rights in the suit property. It has been further averred that the defendant no.1 being Karta of the Regular Second Appeal No.2981 of 2009(O&M) 2 family, the suit property was in his name. It has been alleged that defendant No.1 by taking the advantage of entries in his name, executed the release deed in favour of defendants no. 2 to 4 on 26.4.2002 and mutation no.1939 has been sanctioned. They came to know about the said release deed and mutation when there is a dispute about khasra no.91 gair mumkin gait and obtained copy from concerned Patwari. They requested the defendants to treat the said release deed and mutation as cancelled but initially they postponed the matter and ultimately on 14.1.2005 flatly refused. Hence, this suit.
3. Notice of the suit was given to the defendants. Defendants appeared and contested the suit by way of filing a joint written statement wherein they raised preliminary objections that the plaintiffs have no locus standi and cause of action to file the present suit; the plaintiffs are not entitled to claim the property of defendant no.1 as the suit property is self acquired property of defendant no.1. The suit is time barred. It is further averred that the plaintiffs have no affixed the proper court fee and they have filed the suit by concealing material facts from the Court. On merits, it is denied that the parties to the suit are member of joint Hindu family. It has been averred that the plaintiff no.1 residing separately from the defendants for the last more than 30 years in Delhi whereas plaintiff no.2 is residing separately for the last 25 years. It has been further averred that the suit property is not ancestral. It has been further averred that the land falling in rect. No.25 killa No. 21/1 was purchased by defendant No.1 vide sale Regular Second Appeal No.2981 of 2009(O&M) 3 deed bearing vasika no. 1328 dated 11.7.1980 from one Ganpat son of Chhailu. Similarly, the land falling in rect. No. 29 killa no.8,12,13 and 14 were purchased by defendant No.1 vide registered sale deed bearing vasika no. 2587 and 2627 dated 26.11.1986 and 1.12.1986 respectively to the extent of 1/4th share. The remaining land is also not ancestral. It has been averred that in oral family settlement about 25 years back, the plaintiff no.1 had taken cash in lieu of his share and started a dairy in Delhi. Similarly, plaintiff no.2 has taken cash to purchase a residential plot. It has been averred that now the plaintiffs no. 1 and 2 are having no concern with the suit property and the suit is liable to be dismissed on this ground only. It has been further averred tht the release deed is legal and valid. The plaintiffs are well aware of it. The defendants no. 2 to 4 are in possession and the plaintiffs were having the knowledge from the date of execution of the release deed. It is denied that the mutation sanction on the basis of release deed is wrong and illegal. It has been further averred that the plaintiffs' case is based on false story and is time barred. It has been further averred that the plaintiffs are misleading the Court by showing the property as ancestral. It has been further averred that the suit has been filed just to harass the defendants and prayed that the same may be dismissed with heavy costs.
On the pleadings of the parties, the following issues were framed:-
"1. Whether the suit property is joint Hindu Family and ancestral Regular Second Appeal No.2981 of 2009(O&M) 4 property as prayed?OPP
2. Whether the release deed no.71 dated 26.4.2002 and mutation sanctioned on the basis of thereof are illegal, null and void and liable to be set aside as prayed for?OPP
3. Whether the plaintiffs are entitled for relief of permanent injunction restraining the defendants from alienating the suit land, creating any charge thereon or ousting them from the same as prayed for?OPP
4. If during pendency of the suit, defendants succeeded establishing any charge of the suit land or succeeding in ousting the plaintiffs, in that eventuality, whether plaintiffs are entitled to restoration of prior position?OPD
5. Whether the suit is time barred ?OPD
6. Whether the plaintiffs have no locus standi to file the suit?OPD
7. Whether the suit is not maintainable in the present form ?OPD
8. Whether the suit is not properly valued for the purpose of Court fees?OPD
9. Relief."
After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed.
The case of the plaintiffs is that the parties are members of the Joint Hindu Family and the suit property was their joint ancestral coparcernary property. Plaintiffs have, thus, pre-existing rights in the suit property. However, defendant No.1, who is father of the plaintiffs and defendants No. 2 to 4 got the property in dispute by way of a decree dated Regular Second Appeal No.2981 of 2009(O&M) 5 9.9.1991 executed by his father Bhgmal in his favour as well as in favour of his brothers-Ram Singh, Phool Singh and Pehlad. Since the property had not come to defendant No.1 by way of survivorship and had rather come to him on the basis of a decree dated 9.9.1991, both the Courts below had rightly held that the property in the hands of defendant No.1 could not be said to be his ancestral property rather it was self-acquired property for all intents and purposes. In these circumstances, the suit filed by the plaintiffs had been rightly dismissed by the Courts below.
No substantial question of law arises in this regular second appeal which would warrant interference by this Court . Accordingly, this appeal is dismissed.
( Sabina ) Judge August 10, 2009 arya