Punjab-Haryana High Court
Sandeep Kumar And Others vs Raj Kumar Sharma And Others on 15 July, 2013
Author: Jaswant Singh
Bench: Jaswant Singh
RSA 3804/2011(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA 3804/2011(O&M)
Date of decision:15/07/2013
Sandeep Kumar and others
.............Appellants
v.
Raj Kumar Sharma and others
.............Respondents
CORAM: HON'BLE MR.JUSTICE JASWANT SINGH
Present:- Mr.RS Sidhu,Advocate for the appellants/plaintiffs
Jaswant Singh,J.(Oral)
Plaintiffs are in second appeal against the concurrent findings recorded by both the Courts below whereby their suit for declaration and permanent injunction was dismissed by the learned Civil Judge (Jr.Div.)Abohar vide judgement and decree dated 16.9.2009 and the findings thereof were affirmed in appeal by the learned Additional District Judge, Ferozepur vide judgement and decree dated 27.4.2011.
In brief the facts are that plaintiffs 1 to 3 are the sons of defendant no.1-Raj Kumar Sharma while plaintiff no.4 is son of defendant no.2-Surinder Sharma. Aforesaid defendants 1 and 2 and defendant no.3-Vijay Kumar are brothers. Defendants 1 and 2 executed RSA 3804/2011(O&M) 2 a gift deed dated 18.4.1994 in respect of land measuring 1 kanal comprised in khasra no.6/7 in favour of Radha Swami Satsang, Beas- defendant no.4 through its Secretary-defendant no.5. It appears that defendant no.4 subsequently exchanged the aforesaid 1 kanal/ suit land with Kuldip Singh, respondent no.6 vide an exchange deed who further vide sale deed dated 15.1.2001 sold the suit land to defendants 7 and 8. Defendants 7 and 8 are further alleged to have transferred six marlas out of 1 kanal in favour of defendants 9 and 10. The plaintiffs thus filed a suit challenging the gift deed dated 18.4.1994 and the subsequent sale deeds/transfer of land on the ground that the suit property was a joint Hindu family co-parcenary property in the hands of defendants 1 to 3 and thus the said gift deed could not be effected moreso in the absence of any legal necessity.
Defendants 1 to 3 and defendant no.6 were proceeded ex parte. The remaining defendants appeared and filed separate written statements.
It was denied that the suit property was ancestral and co- parcenary. It was further stated that the gift deed has been validly executed and mutations to that effect were duly entered in the revenue records. It was further stated that the sale deeds were also for consideration and duly executed.
On the basis of pleadings issues were framed. The learned trial court on the basis of evidence on record held that the plaintiffs had failed to prove that the suit land was a joint ancestral property and thus RSA 3804/2011(O&M) 3 in view of evidence of DW1-Surinder Kumar held that defendants 1 and 2 had validly executed a registered gift deed on 18.4.1994 through their authorised Special Attorney in favour of defendant no.4-Radha Swami Satsang Society, Beas out of their own free will and volition. Defendant no.4 was also delivered the possession and a mutation had also been sanctioned in favour of defendant no.4. Thus, the suit was dismissed by the learned trial court.
The learned first appellate court, while dismissing the appeal filed by the plaintiffs besides holding that the plaintiffs had failed to prove that the suit land measuring 1 kanal comprised in khasra no.6/7 was a joint Hindu co-parcenary property in the hands of defendants 1 to 3 also held that the suit property was self-acquired property of defendants 1 to 3. The relevant para 18, for ready reference, is reproduced hereunder:-
"18. The main question which calls for consideration is that whether the suit property measuring 1 kanal comprised of khasra no.6M killa no.7 was Joint Hindu Family coparcenary property in the hands of respondents no.1 to 3 or not. While on one hand plea of the appellant is that the suit property was joint Hindu Family Property in the hands of respondents No.1 to 3, the case of answering respondents is that the same was self acquired property of these respondents. To decide the controversy effectively as is emerging between the parties, that basic ingredients to prove the nature of the suit property to be joint Hindu Family property be discussed alongwith the revenue record proved on the file by the parties. It is well settled that to prove nature of the property to be joint Hindu Family coparcenary property, it is essential that the appellant was to prove on the file that he inherited the suit property from his father, his father from his grand father and his grand father from his great grand father. Now if revenue record RSA 3804/2011(O&M) 4 proved on the file by the parties is gone through, it shows that Ex.P2 Jamabandi for the year 1976-77, Ex.P3 for the year 1991- 92, Ex.P4 for the year 1996-97 and Ex.P7 for the year 2001-02. No doubt, in these revenue records name of Raj Kumar respondent no.1 figure, but it is nowhere established as per requirement of law that Raj Kumar had inherited the suit property from his father, his father had inherited the suit property from his grand father. In the absence of these legal requirements, it cannot be held that nature of the suit property is proved by the appellant to be joint Hindu Family coparcenary property. On the other hand from Ex.P5 gift deed dated 18.4.1994 it is proved on the file and even admitted by the appellant that the suit property was gifted to Dera Radha Swami. It is also mentioned in the gift deed that possession of the suit property was also delivered to the said Dera. Coming to the revenue record proved on the file by the answering respondents i.e. Ex.D2 copy of jamabandi for the year 2001-02 regarding the suit property comprised of Khasra no.6//7 which shows that name of respondent no.1 Raj Kumar and respondent no.2 Surinder Sharma has been mentioned in the same being purchasers of the suit property. Thus, this document proved on the file by the respondent rather falsify the claim of the appellant that the suit property was ancestral in the hands of respondents Raj Kumar and Surinder Sharma. Rather in this revenue record it is clearly mentioned that Raj Kumar and Surinder Sharma respondents are subsequent purchasers of the suit property. Hence, in view of the above discussion it is clearly established that the appellant has miserably failed to prove on the file nature of the suit property to be joint Hindu Family Coparcenary property. In this regard cross examination of appellant himself is also relevant wherein he has stated that said gift deed was executed by respondents No.1 and 2 in favour of respondent no.3 with the free mind. Physical possession of the suit property was also given to the Dera at the time of execution of said gift deed dated 18.4.1994. He has further stated that respondent no.1 his father and respondent no.2 his uncle had sold other property also, but he has not filed any case against those sale deeds. It is also admitted by the appellant himself that construction has also been raised over the suit property after it was exchanged by respondent no.4 (hereinafter to be mentioned as Dera) with respondent no.5.RSA 3804/2011(O&M) 5
It is the specific case of the answering respondents that the suit property was not joint Hindu Family Coparcenary property in the hands of respondents no.1 to 3 and the same was self acquired property having been purchased from Kala Wati. The appellant when stepped into the witness box as PW1 has even failed to deny this fact when he had answered that he did not know whether his father and uncle i.e. respondents no. 1 and 2 had purchased the land by way of share from said Kalawati. Hence this indirect admission on the part of the appellant also proves on file that the case of the respondent that the suit property was self acquired property of respondents No. 1 to 3."
The learned counsel for the appellant is unable to show anything on record to show that the concurrent findings recorded by both the courts below are perverse in any manner. Accordingly, the present second appeal is dismissed as no question of law much less substantial question of law arises for consideration in this appeal.
15.07.2013. (Jaswant Singh) joshi Judge