Punjab-Haryana High Court
Baljit Singh And Others vs Mani Ram And Others on 4 January, 2011
Author: L. N. Mittal
Bench: L. N. Mittal
RSA No.4440 of 2010 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.4440 of 2010 (O & M)
Date of Decision: 04.01.2011.
Baljit Singh and others .....Appellants
Versus
Mani Ram and others ......Respondents
Coram:- HON'BLE MR. JUSTICE L. N. MITTAL.
Present: Mr. Prem Singh Bhangu, Advocate for the appellants.
L. N. MITTAL, J (ORAL)
Defendant Nos.1 to 3 having failed in both the Courts below are in second appeal.
Appellants and respondent No.1-plaintiff-Mani Ram are real brothers. Respondent Nos.6 and 7 (defendant Nos.8 and 9) are their real sisters. They are all issues of Chhitru Ram. Smt. Kreshani- respondent No.2 (defendant No.4) is their mother. Respondent Nos.3 to 5 (defendant Nos.5 to 7) are sons of a deceased daughter of Chhitru Ram.
Respondent No.1-plaintiff filed suit challenging consent judgment and decree dated 17.09.1983 suffered by Chhitru Ram in favour of defendant Nos.1 to 3 regarding 16 kanals land in suit. The plaintiff alleged that the suit land is ancestral Joint Hindu Family Property and, therefore, consent decree suffered in favour of three sons only, to the exclusion of the fourth son, is null and void. It was alleged that Chhitru Ram purchased the suit land from the income of other Joint Hindu Family Property. The plaintiff also alleged that he RSA No.4440 of 2010 (O & M) -2- along with defendants No.1 to 3 and their father had been jointly cultivating the suit land. Their father Chhitru Ram died on 19.12.1998. Even after his death, plaintiff and defendants are holding the suit land jointly. It was wrongly asserted in the previous suit No.354 of 1983, in which consent decree in question was passed that Chhitru Ram had only three sons i.e defendant Nos.1 to 3 herein whereas in fact Chhitru Ram had four sons. Thus the decree was obtained by fraud. It was also alleged that Chhitru Ram could not transfer the suit land to defendant Nos.1 to 3 only, being coparcenary property. It was also alleged that the impugned decree required compulsory registration, but it is unregistered. Various other grounds were also pleaded to challenge the consent decree.
Defendants broadly controverted the plaint allegations. Relationship between the parties was admitted. It was, however, pleaded that Chhitru Ram was exclusive owner of the suit property, being his self acquired property and he was, therefore, competent to transfer the same in favour of defendant Nos.1 to 3. Chhitru Ram voluntarily suffered the consent decree in question. It was also alleged that plaintiff was residing separately from Chhitru Ram and defendant Nos.1 to 3. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 12.12.2008 decreed the plaintiff's suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 01.09.2010. Feeling aggrieved, defendant Nos.1 to 3 have filed the instant second appeal.
RSA No.4440 of 2010 (O & M) -3-
I have heard learned counsel for the appellants and perused the case file.
Learned counsel for the appellants vehemently contended that the suit land was self-acquired property of Chhitru Ram, who had purchased it vide registered sale deed dated 31.12.1975 and, therefore, he was competent to transfer the same in favour of defendant Nos.1 to 3/appellants by way of impugned consent decree. The contention is prima facie very attractive, but cannot be accepted. It has been found by the Courts below that Chhitru Ram had 66 kanals 19 marlas land (in addition to the suit land) which was ancestral coparcenary property and the suit land was purchased from the income of the said coparcenary property as Chhitru Ram had no other source of income. In addition to it, even if it be assumed for the sake of argument that it was self-acquired absolute property of Chhitru Ram, even then he could not have transferred it by way of unregistered consent decree because self-acquired absolute property could be transferred by Chhitru Ram only by registered deed and not by way of unregistered consent decree.
Learned counsel for the appellants relied on judgment of this Court in the case of Yugraj Singh and another versus Harbans Singh and others, 2010(2) RCR (Civil) 4. In that case, the suit land was not proved to be ancestral property. In the instant case, however, both the Courts below have recorded elaborate reasons based on proper appreciation of evidence to come to concurrent finding that suit land was coparcenary property in the hands of Chhitru Ram. Moreover in the instant case, even if the suit land is assumed to be self-acquired property of Chhitru Ram, even then RSA No.4440 of 2010 (O & M) -4- impugned unregistered consent decree does not transfer title in the suit land to defendant Nos.1 to 3 only because title could be transferred only by way of registered deed.
Learned counsel for the appellants also contended that the suit is time barred as consent decree dated 17.09.1983 has been challenged in suit instituted on 20.12.2000 i.e more than 17 years after the passing of the consent decree. This contention also cannot be accepted because as per paragraph 1 of the plaint which was admitted as correct in written statement, Chhitru Ram died on 19.12.1998 and, therefore, the suit filed two years after his death cannot be said to be time barred. Even otherwise, the plaintiff became cosharer in the suit land being coparcener and also being one of the natural heirs of Chhitru Ram and for this reason also, the suit cannot be held to be barred by limitation.
Concurrent finding recorded by the Courts below is not shown to be perverse or illegal so as to warrant interference in second appeal. On the contrary, the said finding is based on proper appreciation of evidence and is fully justified by the evidence on record and is supported by cogent reasons. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is found to be lacking any merit and is accordingly dismissed in limine.
04.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE