Punjab-Haryana High Court
Madalsa vs Himanshu Singhal & Ors on 16 January, 2019
Author: Amit Rawal
Bench: Amit Rawal
Regular Second Appeal No.5454 of 2017 (O&M) {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: January 16, 2019
1. RSA No.5454 of 2017 (O&M)
Madalsa
...Appellant
Versus
Himanshu Singhal & others
...Respondents
2. RSA No.3176 of 2017 (O&M)
Madalsa Rani
...Appellant
Versus
State of Haryana & others
...Respondents
CORAM: HON'BLE MR.JUSTICE AMIT RAWAL
Present: Mr. O.P.Sharma, Advocate,
for the appellant in both the appeals.
*****
AMIT RAWAL, J. (Oral)
CM No.14502-C of 2017 in RSA No.5454 of 2017 For the reasons mentioned in the application, which is supported by an affidavit, delay of 75 days in re-filing the appeal is condoned.
CM stands disposed of.
RSA Nos.5454 and 3176 of 2017 This order of mine shall dispose of two Regular Second Appeals bearing No.5454 and 3176 of 2017 as the common question of law and fact are involved.
1 of 7 ::: Downloaded on - 10-02-2019 01:43:37 ::: Regular Second Appeal No.5454 of 2017 (O&M) {2} RSA No.5454 of 2017 is arising out of the adjudication of Civil Suit No.591 of 2007 titled as "Madalsa Versus Himanshu & others"
(hereinafter referred as "Suit No.1") claiming declaration qua the estate of Ravi Bala, whereas RSA No.3176 of 2017 is arising out of dismissal of Civil Suit No.74 of 2010 titled as "Madalsa Versus State of Haryana & others" (for short" Suit No.2") seeking recovery of the amount of compensation in lieu of the acquisition of the land.
Appellant-plaintiff sought the declaration of ownership of the suit property to the extent of her share on account of the fact that she had a right by birth in the estate of Ravi Bala, who was a coparcener with regard to the property inherited by her from her father being 4th generation in lineage. It was alleged that Ravi Bala died on 26.10.2007 and in view of the amendment caused in Section 6 of the Hindu Succession Act, married daughter acquired the right and title in the suit property.
Defendant No.2, brother of the plaintiff, executed release deeds No.3663 and 3666 dated 03.10.2007 in favour of defendant No.1 and defendant No.2 also procured a Will dated 24.10.2000 and such challenge was laid to the aforementioned release deeds and Will.
Defendants opposed the suit and denied the plaintiff to have any right in the property, much less jointness and coparcenary in nature. It was alleged that Ravi Bala had executed a release deed dated 03.10.2007 in respect of land measuring 13 biswas in favour of defendant No.1. She had also executed a gift deed dated 07.01.2005 in favour of the plaintiff and another release deed dated 03.10.2007 in respect of land measuring 50 kanals 1 marla in favour of defendant No.1. Ravi Bala had also executed another release deed in respect of land measuring 14 kanals 9 marlas in
2 of 7 ::: Downloaded on - 10-02-2019 01:43:37 ::: Regular Second Appeal No.5454 of 2017 (O&M) {3} favour of defendant No.1 and, therefore, defendant No.1 was the absolute owner of the property.
Since the parties were at variance, the trial Court framed the following issues:-
"1) Whether the plaintiff is owner to the extent of 1/3rd share in the suit property and release deeds No.3666, 3663 and 3665 are illegal, null and void on the ground mentioned in the plaint? OPP
2) Whether the registered Will dated 24.10.2007 alleged to be executed by Smt.Ravi Bala is illegal, null and void? OPP
3) Whether the suit of the plaintiff is not maintainable in the present form? OPD
4) Whether the plaintiff has no locus standi to file the present suit? OPD
5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
6) Whether the plaint is liable to be rejected under Order 7 Rule 11 CPC on account of deficiency of court fee? OPD
7) Relief."
The plaintiff, in support of the pleadings, examined six witnesses, i.e., herself as PW-1, Kamlesh Kumar PW-2, Ravi Dutt PW-3, Sitender Pal, Clerk, Bank of India, Jagadhri PW-4, Pardeep Kumar, Clerk, MC, Yamuna Nagar PW-5 and Himanshu, Registration Clerk, Jagadhri as PW-6 and brought on record the following documentary evidence:-
Ex.P1 Copy of release deed No.3663 dated 03.10.2007 Ex.P1 Copy of release deed No.3666 dated 03.10.2007 Ex.P1 Copy of release deed No.3665 dated 03.10.2007 Ex.P4 (Repeated) Original power of attorney dated 16.02.2005 Ex.P5 Copy of Jamabandi for the year 2001-02 Ex.P6 Copy of Jamabandi for the year 2002-03 Ex.P7 Copy of Jamabandi for the year 2005-06
3 of 7 ::: Downloaded on - 10-02-2019 01:43:37 ::: Regular Second Appeal No.5454 of 2017 (O&M) {4} On the other hand, the defendants examined ten witnesses, namely, DW-1 Vikrant Kumar, DW-2 Mohit Kumar, DW-3 Suresh Jaiswal, DW-4 Atul Jaiswal, Advocate, DW-5 Krishan Lal, DW-6 Permanand, DW- 7 Puran Chand, DW-8 Som Parkash Numberdar, DW-9 Raghwinder Singhal, defendant No.2 and DW-10 Sumit Kumar Arora, Handwriting and Finger Prints Expert and brought on record the following documentary evidence.
Ex.DW1/A Copy of application form
Ex.DW1/B Copy of ration card
Ex.DW2/A Copy of Will dated 24.10.2000
Ex.D1 Copy of authority letter dated 20.01.2012
Ex.D2 Copy of account operation form
Ex.D3 Copy of statement of account
Ex.D4 Copy of release deed No.3663 dated 03.10.2007
Ex.DW4/A Endorsement of Sub Registrar dated 24.10.2001 Ex.D5 Copy of release deed No.3666 dated 03.10.2007 Ex.D6 Copy of release deed No.3665 dated 03.10.2007 Ex.D7 Endorsement of Sub Registrar dated 03.10.2007 Ex.D8 Copy of endorsement on release deed dated 03.10.2007 Ex.D9 Copy of endorsement on release deed dated 03.10.2007 Ex.D10 Copy of power of attorney dated 06.05.2005 Ex.D11 Endorsement of Sub Registrar dated 06.05.2005 Ex.DW10/B Report of Handwriting Expert Ex.DW10/C `Photographic Chart To Ex.DW10/I Ex.D12 Copy of gift deed registered on 07.01.2005.
Ex.D13 Endorsement of Sub Registrar dated 12.01.2005
Ex.D14 Copy of sale deed dated 30.07.1982
Ex.D15 Copy of letter dated 16.09.1981
Ex.D16 Death certificate of Anirudh Singhal
Ex.D17 Copy of judgment dated 10.19.2012.
In rebuttal, the plaintiff tendered the following documents:-
4 of 7 ::: Downloaded on - 10-02-2019 01:43:37 ::: Regular Second Appeal No.5454 of 2017 (O&M) {5} Ex.P8 Copy of mutation No.848 Ex.P9 Copy of mutation No.105 Ex.P10 Copy of death certificate of Ashok Kumar Ex.P11 Copy of death certificate of Madhu Bala Ex.P12 Copy of pass book of Ravi Bala Ex.P13 Copy of Identity Card of Ravi Bala Ex.P14 Copy of mutation No.107 Ex.P15 Copy of death certificate of Ravi Bala Ex.P16/A Copy of order dated 05.03.2009 passed by AC Ist Grade Ex.P17/A Copy of assessment register Ex.P18 Copy of mutation No.441 Ex.P19 Copy of mutation No.64 Ex.P20 Copy of mutation No.31 Ex.P21 Copy of mutation No.23 Ex.P22 Copy of mutation No.69 Ex.P23 Copy of mutation No.42 Ex.P24 Copy of mutation No.883 Ex.P25 Copy of mutation No.242 (repeated) The trial Court partly decreed the suit and set-aside the release deeds, but did not confer status of coparcener on the premise that the plaintiff failed to prove the property being ancestral in nature. Two appeals, one at the instance of the plaintiff and other by defendant No.1 have been filed, but the same have been dismissed.
In Suit No.2, the plaintiff sought recovery of the amount allegedly received by defendant No.4 in respect of the acquisition of the land on the ground that she had a right by birth.
Mr. O.P.Sharma, learned counsel representing the appellant- plaintiff, in support of the memorandum of appeals, raised the following submissions:-
1) The property at the hands of Ravi Bala was ancestral as her father Avdesh Saran had derived the same from Beni Parshad and Beni Parshad from Bansi Lal and in this regard, 5 of 7 ::: Downloaded on - 10-02-2019 01:43:37 ::: Regular Second Appeal No.5454 of 2017 (O&M) {6} mutation No.441 Ex.P18 had been brought on record to establish the character and nature of the property;
2) Mutation Ex.P18 also reflects that Ravi Bala acquired the right in the property from her father, thus, the release deeds executed by Ravi Bala were without legal necessity and liable to be set-aside;
3) Defendant No.2 could not have further executed release deed in favour of defendant No.1;
4) Jamabandies Ex.P5, Ex.P6 and Ex.P7 for the years 2001- 02, 2002-03 and 2005-06 and subsequent mutations Ex.P20 to Ex.P25 prove the property to be ancestral in nature;
5) Setting-aside of the release deeds would be insignificance. It would be reverted back to defendant No.1, who acquired property on the basis of the release deed executed by Ravi Bala.
I am afraid that the aforementioned arguments are not sustainable as the khewat number of Ex.P18 was 441, where different killas numbers were reflected and vis-a-vis that reflected in Ex.P19, it was 64. The essential documents, which were required to be placed n record, did not carry any presumption of correctness reflected in the old khasra numbers and establishment of any right nor rule out any controversy or misinterpretation of the documents. Best possible evidence would have been the original revenue excerpt to establish the conferment of the right from common ancestors to establish 4th generation in lineage. The aforementioned view of mine is derived from the ratio decidendi culled out by this Court in Banta Singh and others Versus Phuman Singh s/o Jiwand Singh and 6 of 7 ::: Downloaded on - 10-02-2019 01:43:37 ::: Regular Second Appeal No.5454 of 2017 (O&M) {7} others, 1972 PLJ 275 (Para 6). In the absence of the same, it is not discernible as to whether it was the same property or some other land or the property at the hands of Beni Parshad reflected in mutation Ex.P19 had fallen to the subsequent generation to establish the right by birth.
In my view, the plaintiff miserably failed to prove the nature of the property to be ancestral and having any right.
I cannot remain unmindful of the fact that the factum of the gift deed dated 07.01.2005 executed by Ravi Bala in favour of the plaintiff had not been challenged. Filing of the suit was nothing but an act of aggrandizement. The argument of the learned counsel is not able to bring the case within the realm of perversity. No ground for interference is made out out, much less involvement of any substantial question of law. Resultantly, the appeals are dismissed. Consequently, the suit for recovery is also dismissed.
January 16, 2019 ( AMIT RAWAL )
ramesh JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable: Yes/No
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