Punjab-Haryana High Court
Sukhdev Singh vs Charan Singh & Ors on 7 May, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1917 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.1917 of 2012(O&M)
Date of Decision:-07.05.2012
Sukhdev Singh.
......Appellant.
Versus
Charan Singh & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH.
Present:- Mr. Rai Singh Chauhan, Advocate for appellant.
***
JASWANT SINGH, J.
C.M. No.5342-C of 2012 Instant CM has been filed under section 151 CPC seeking condonation of 55 days delay in refilling the appeal.
Heard.
In view of the submissions made in the application duly supported by an affidavit, the same is allowed and delay of 55 days in refilling the appeal is condoned.
C.M. No.5343-C of 2012 Allowed as prayed for.
RSA No.1917 of 2012 Plaintiff/appellant is in second appeal against the judgment and decree dated 01.10.2011 passed by the learned District Judge, Kapurthala whereby his appeal against the judgment and decree dated 7.8.2010 passed RSA No.1917 of 2012(O&M) #2# by the learned Trial Court has been dismissed and findings of the learned Trial Court dismissing the suit have been affirmed.
Brief facts for proper adjudication of the case in hand are that defendant no.1 Charan Singh is the father of the plaintiff and defendant nos.2 to 4 who as per allegations of the plaintiff constituted a joint Hindu undivided family and the said Charan Singh was the Karta of the same and other family members as its co-parceners. The disputed land along with other land was earlier owned by Raghbir Singh, father of defendant no.1 as per jamabandi for the year 1961-62. After the death of Raghbir Singh the land devolved upon Charan Singh, being his son and thus the suit property was ancestral property in his hands. Charan Singh as Karta with the consent of the other co-parceners the plaintiff and defendant nos.2 to 4 effected a family settlement whereby the Hindu undivided family was dissolved. It was stated in the plaint that defendant nos.2 & 3 were given some other land and the plaintiff was allotted the present land in dispute i.e. 11 Kanal 18 Marla. Thus the plaintiff is the owner in possession of the suit land on the basis of oral family settlement, which has otherwise been fully implemented. Although the name of defendant no.1 appears in the jamabandi but it was agreed among the parties that the said correction would be made. It was further averred by the plaintiff that the defendant no.1 has now taken undue advantage of the revenue entries and transferred the suit land in favour of Surinder Kaur(defendant no.5) vide sale deed dated 16.4.2003 which is without any consideration and does not confer any right upon the same. Therefore it was stated that since the plaintiff was the owner of the property, defendant no.1 did not have any right to transfer the same.
RSA No.1917 of 2012(O&M) #3#
Upon notice, none appeared on behalf of the
defendants/respondents and accordingly they were proceeded ex-parte.
Plaintiff/appellant led his ex-parte evidence. After appreciating the ex-parte evidence of plaintiff/appellant, the trial Court dismissed the suit of the plaintiff vide its ex-parte judgment and decree dated 07.08.2010 and the same findings were affirmed in appeal vide appellate court's judgment and decree dated 01.10.2011. Hence the present second appeal.
I have heard learned Counsel for plaintiff/appellant and have gone through the record very carefully with his able assistance.
Learned Counsel for the plaintiff/appellant has argued that both the Courts below have not appreciated the evidence on record in right perspective, whereby he has been able to prove the family settlement executed between the parties. He has further argued that if family settlement is not taken into consideration still the defendant no.1 could not have sold the suit land through the sale deed as the same is ancestral property.
After hearing learned Counsel for plaintiff/appellant, I do not find any merit i the contentions raised by him. A bare perusal of the paper book would show that the plaintiff has not been able to lead any kind of substantial evidence so as to prove the alleged family settlement between him and defendant nos.1 to 4. Plaintiff has not given any specific date, month or year so as to substantiate his plea of family settlement. Even before this Court the counsel could not point out the numbers etc of the alleged family settlement. The learned Lower Appellate Court has rightly observed in paragraph no.6 of its judgment that since no family settlement had taken place between the parties thus no information was required to be RSA No.1917 of 2012(O&M) #4# given to the revenue authorities. It has further been observed by learned lower Appellate Court that no revenue record has been placed on record to prove that the land in dispute has fallen to the share of the plaintiff during family settlement. Moreover, there is no evidence to show that which property was given to the defendant nos.1 to 4. In these circumstances I am of the considered opinion that appellant has miserably failed to prove the fact that the oral family settlement had actually taken place and was implemented amongst themselves.
Now second arguments which has been raised by the learned Counsel for the appellant qua the property being ancestral, I am in complete disagreement with the contentions raised before me. It was incumbent upon the appellant to prove that the property was inherited by Charan Singh (respondent no.1/defendant no.1) from his father and father's father without their being any kind of disruption in inheritance. To prove this fact plaintiff should have placed on record the revenue record so as to draw any kind of inference in his favour. However, the plaintiff has orally relied upon the revenue excerpt Ex.P-2 which contains mutation of inheritance of Raghbir Singh, father of defendant no.1-Charan Singh bearing no.1583. This excerpt would show that the mutation was sanctioned on the basis of a Will dated 9.11.1960. When such is the position it cannot be stated that property in the hands of Raghbir Singh was ancestral in its nature because had that been so Raghbir Singh would have inherited this property from his father by way of natural succession. This plaintiff has failed to prove that property in dispute is ancestral co-parcenary. The sale deed dated 16.4.2003 Ex.P-4 shows that same was executed for a consideration and no evidence has been brought forth by the appellant to take otherwise view that consideration was RSA No.1917 of 2012(O&M) #5# not paid. In these circumstances I am of the opinion that the present second appeal deserves outright dismissal as the plaintiff/appellant has failed on all the fronts raised by him in the suit.
In view of the above, no question of law much less substantial question of law arises before this Court for consideration and as such the present second appeal is hereby dismissed.
( JASWANT SINGH ) JUDGE May 07, 2012 Vinay