Punjab-Haryana High Court
Sher Singh And Ors. vs Mahabir Singh And Ors. on 4 February, 2002
JUDGMENT V.K. Bali, J.
1. This Regular Second Appeal has been filed by the defendants in the original lis. Plaintiff-Mahabir Singh succeeded before the trial Court in view of judgment and decree dated 14.2.1989. This judgment and decree was challenged by the defendants before the learned first Appellate Court but without any success inasmuch as the same came to be dismissed on 7.6.1991.
2. Briefly put, it has been the case of plaintiff-Mahabir Singh that his father Sher Singh was owner of 177 Kanals situated at village Hathur, Tehsil Jagraon, District Ludhiana which was ancestral in his hands (Sher Singh). He along with other brothers, namely, Surjit Singh, Dalip Singh and Manjit Singh, has right in the land aforesaid by birth, the property being joint Hindu family co-parcenery property. Sher Singh, during his life time, had suffered a decree pertaining to parcel of land measuring 69 kanals 5 marlas out of total land measuring 177 kanals in favour of his son Surjit Singh on 10.10.1986, whereas another piece of land measuring 69 kanals 5 marlas was transferred in favour of Manjit Singh vide yet another civil court decree dated 12.8.1961. Sher Singh suffered still another decree dated 22.9.1986 vide which he transferred land measuring 38 kanals in favour of another soft Dalip Singh. First two decrees, as mentioned above, came to be challenged by plaintiff-Mahabir Singh by primarily stating that the Sher Singh had no right whatsoever to confer proprietary right to other brothers to his complete exclusion, property being joint Hindu family property in which he had right by birth. It is conceded position that the decrees, subject matter of challenge, came to be passed in favour of Surjit Singh and Manjit Singh on the basis of family settlement.
3. The cause of plaintiff was Contested by the defendant/appellants on various grounds as would be reflected from the issues that came to be framed by the learned trial Court on the pleadings of the parties. Same are reproduced as under;-
"1. Whether the property in dispute is joint Hindu family co-parcenary property? OPP
2. Whether the civil Court decree dated 12.8.1986 is null, void, illegal and inoperative, qua the rights of the plaintiff? OPP
3. Whether the civil Court decree dated 10.10.1986 is null, void, illegal, inoperative qua the rights of the plaintiff? OPP
4. Whether the suit is not maintainable in the present form ? OPD
5. Relief."
4. The trial, as mentioned above, resulted into decree in favour of the plaintiff, which has since been affirmed by the first appellate Court.
5. Mr. Saggar, learned counsel for the appellant vehemently contends that admission alone does not prove the nature of land, i.e. as to whether the same is self acquired or co-parcenary property and whenever a plea with regard to nature of property being ancestral is raised, same has to be proved on the dint of documentary evidence. He further contends that the courts below were not justified in returning a finding to the effect that the property in dispute was ancestral on the basis of non-specific denial of the said fact in the written statement.
6. After hearing learned counsel for the parties and examining the records of the case, the Court finds no substance in the only contention of the learned counsel, as noted above. Issue No. 1, which pertains to property in dispute being joint Hindu Family co-parcenery property or not, has since been discussed by the learned first Appellate Court and it would be useful to give observations made by the said Court on the issue aforesaid. Same are as follows:-
"11. Sh. Mahabir Singh, plaintiff PW6 has stated that Sher Singh is the father while he, Manjit Singh, Surjit Singh and Dalip Singh are his sons. They constitute a Joint Hindu Family and each and every member of the said Joint Hindu Family has got share in the suit property which is the ancestral and co-parcenery property. In broad out line, Chet Singh PW2, Gurdev Singh PW3, Ajit Singh PW4 and Darbara Singh PW5 have supported the case of the plaintiff. The major part of their evidence that the suit property is the ancestral co-parcenery property is not seriously challenged in the cross-examination of most of these witnesses.
12. Even Shri Nazir Singh, DW1 has admitted that some part of the suit land is the ancestral and co-parcenery property and some is not. However, in the written statement, the defendants had pleaded that no part of the suit property is the ancestral and co-parcenery property. Therefore, the evidence of DW1 makes a material departure from the pleadings of the defendants. To clarify the matter further Nazir Singh DW 1 has admitted in cross-examination that the sons of Sher Singh acquired right in the property of Sher Singh by birth. Thus, no clearer proof is needed that the suit property in the hands of Sher Singh is the ancestral co-parcenery property qua his sons.
13. Shri Gurdial Singh DW2 has stated that Mahabir Singh, plaintiff has not been present in the village, therefore, his share in the suit property was kept by Sher Singh in his own possession. By implication it means that suit property was ancestral and co-parcenery property and share of Mahabir Singh plaintiff was not given to him because he was absent from the village. Again this witness has admitted that the plaintiff and other defendants (sons of Sher Singh) acquired right in the property of Sher Singh at the time of their birth. This is again an admission that the suit property is the ancestral co-parcenery property of the parties.
14. Even Sher Singh, defendant DW3 Manjit Singh DW4 have admitted that five acres of suit land is the ancestral and co-parcenery property of the parties. This is a material departure from their pleadings. In the written statement that the suit property was not ancestral and co-parcenery property of the parties. So, that as it may, from the admissions of Nazir Singh DW1 and Gurdial Singh DW2 made in their cross examination referred to above, the suit property is proved to be the ancestral co-parcenery property and Joint Hindu Family Property of the plaintiff, his brothers and their father.
15. It is rightly submitted by learned counsel for the plaintiff-respondent that in fact their written statement, the defendant No. 1 and 2 did not deny the ancestral and co-parcenery nature of the property. Para No. 2 of the plaint reads as under:-
"That the plaintiff and defendants No. 2 and 4 are the sons of the defendant No. 1, who constitute joint Hindu Family and the land aforesaid is the ancestral Joint Hindu Family property in the hands of defendant No. 1, who holds it as Karta of the family for the benefit of the estate and for the benefit of the Joint Hindu family like the parties to the suit, i.e., its member. The parties are governed by Hindu Law in respect of alienations, successions and other matters purely by its principles. The parties form one unit and has not separated so far".
16. Corresponding para No. 2 of the written statement of Sher Singh, defendant reads as under:-
"Para No. 2 is incorrectly stated. The plaintiff does not reside in the village for the last 20 years. He has no interest in the property and he is addicted to bad habits. The land measuring 138K-11M has been given to Manjit Singh and Surjit Singh, defendants by way of court decrees."
17. Corresponding para No. 2 in the written statement of the defendant No. 2 also makes a similar reading. On comparison of aforesaid paragraphs in the plaint and written statement of the defendant No. 1 and 2 it becomes immediately clear that the defendants I and 2 have not denied the specific plea of the plaintiff that they constitute joint Hindu family and that the suit land was ancestral joint Hindu family property of the said family, which was held by the defendant No. l as Karta of the said Joint Hindu Family. The only plea of the defendant No. l and 2 was that the land measuring 138K-11M had been given to the defendants 2 and 3 by the defendant No. l by court decree. But this plea does not controvert the specific plea of the plaintiff that the suit property was the ancestral co-parcenery property of the plaintiff, his brothers and their father, which was held by their father as Karta of the Joint Hindu Family. Therefore, it is clear that the defendants had admitted the case of the plaintiff so far as the ancestral and co-parcenery nature of the property was concerned. So, the findings of the learned trial court on issue No. l are affirmed.
18. Delay is perhaps saddar axiom of Indian judicial system. May be that is its pathology. But it appears that at least once the slow grinding forensic mill moved with celerity. On or about 21.6.1986 Manjit Singh defendant filed a suit against his father Sher Singh for declaration that he was owner in possession of 69K-5M of land described in the cause title of the plaint, the certified copy of which is Ex.P11 and that his father had given it to him by family arrangement. Presto on or about 12.8.1986 Sher Singh, defendant filed a consenting written statement, certified copy Ex.P12 in the said court admitting the case of his son Manjit Singh in toto and with the speed of lightning the learned trial Court in which that suit was pending decreed it on 12.8.1986 after recording the statement of Sher Singh defendant Ex.P13, who admitted the case of his son. On its basis consent decree and judgment dated 12.8.1996 was passed. A similar formal, and formalistic exercise may gone through in another suit filed by Surjit Singh against his father Sher Singh defendant. But it was passing strange that although it was alleged that land had been given to said Manjit Singh and Surjit Singh in a family arrangement yet Mahabir Singh plaintiff, who was a member of the said family and was a necessary party to that suits had not been impleaded as a defendant. Therefore, the proceedings in these suits were inherently bad in law."
7. No exception at all can be had to the findings of the learned first appellate Court, as reproduced above, which are purely based upon the question of decrees being invalid qua the right of the plaintiff, who was concededly not a party so arrayed in the suits; culminating into decrees under challenge and concededly as well, he being very much member of family.
8. Finding no merit in this appeal, I dismiss the same, leaving, however, the parties to the bear their own costs.