Punjab-Haryana High Court
Harjit Singh vs Inder Kaur & Ors on 22 December, 2014
Author: Jaspal Singh
Bench: Jaspal Singh
RSA No.5077 of 2014 --1--
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 5077 of 2014
Date of decision:- December 22, 2014
Harjit Singh .....Appellant...
Vs.
Inder Kaur and others
....Respondents...
CORAM:- HON'BLE MR. JUSTICE JASPAL SINGH
Present:- Mr. C.M. Munjal, Advocate for the appellant.
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JASPAL SINGH, J.
Unsuccessful plaintiff-appellant has preferred the instant regular second appeal, feeling dissatisfied against the judgment and decree dated September 11, 2014, passed by District Judge, Ferozepur whereby the judgment and decree dated May 14, 2012, passed by the Additional Civil Judge (Sr. Division), Ferozepur was upheld and appeal preferred by plaintiff-appellant, was dismissed. Appellant-plaintiffs preferred a Civil Suit No. 133-1/RBT, dated April 30, 2007/July 20, 2011, seeking the following relief:-
"Civil suit for declaration to the effect that the alleged transfer deed dated 23.04.2007 alleged to be executed by defendant No.1 in favour of defendants No.2 and 3 regarding land measuring 14 kanals 18 marlas being 1/6th share out of the total land measuring 89 kanals 11 marlas comprised of Khewat No. 88 Khatauni No. 146, Khasra No. 105(2-3), Khatauni No. 147, Khasra No. 31 Killa 9/1/2(0-19), Khasra No. 45 Killa 1(6-0), Killa 10(4-12), Khatauni No.148 Khasra No. 31 Killa No.9/2(2- SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh
RSA No.5077 of 2014 --2--
9), Killa 12(1-13) Khatauni No. 149 Khasra No.33 Killa 21 (8-0)22(0-16), Khatauni No. 150 Khasra No.34 Killa 24/2 (2-8), 25(8-0), Khatauni No. 141 Khasra 44 Killa 4 min (2-
0) 7(8-0), Khatauni No. 152 Khasra no. 44 Killa 4 min(6-
0), 5min(6-0), Khatauni No. 153 Khasra no. 31 Killa 2/2(2-
0), Khasra No. 44 Killa 5 min (2-0), Killa 6(8-0), Khatauni No. 154 M31 9-1(4-0) Khasra no. 30 Killa 6(6-4), Khasra no. 31 Killa 10(7-16), Killa 11(0-5), Khasra No. 45 killa 1 (1-2) situated in the revenue estate of village Mishriwala, Tehsil and District Ferozepur with consequential relief of permanent injunction restraining the defendants from alienating the land in any manner by way of sale, mortgage or gift and for restraining the defendants from causing any interference, over the land measuring 14 kanals 18 marlas comprised of Measuring 44 killa No. 4min(0-15) out of 2 kanals, killa 4 min (6-0), killa No. 5min (6-0) and Khasra No.105(2-3) totalling 14 kanals 18 marlas on the basis of oral and documentary evidence.
2. The brief facts giving rise to the instant lis are that land measuring 89 kanals 11 marlas, situated in the revenue estate of village Mishriwala, Tehsil and District Ferozepur was owned by Jagat Singh and after his demise, mutation of inheritance was sanctioned in favour of his son Hira Singh. On the death of Hira Singh, mutation of inheritance was sanctioned in favour of Hari Singh, being his adopted son. Thereafter, when Hari Singh expired, mutation of his inheritance was incorporated and sanctioned in favour of plaintiffs- defendants in equal share and character of the land remained unchanged. The property held by Hira Singh is Joint Hindu ancestral coparcenary property, which has been devolved to the parties to the SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh RSA No.5077 of 2014 --3--
instant lis. Subsequently, Inder Kaur-respondent No.1 transferred some property to defendants-respondents No. 2 and 3, without any legal necessity and registered a transfer deed dated April 23, 2007, which is otherwise hit by the provisions of Transfer of Property Act being impermissible under law. The transfer was made by defendant- respondent No.1 without any legal necessity, the value of which has been recited in the transfer deed to `4,66,000/-, but no stamp fee was paid nor any consideration has passed in terms of the alleged transfer deed. Moreover, Inder Kaur is a simple lady and was swayed by the suggestion of others. She is not medically and physically fit and is unable to walk being aged about 100 years. Even the recitals contained in the deed are also false. Since, she was not in an exclusive possession of the property at the time, question of delivery of possession also does not arise at all. The marginal witnesses of the alleged transfer deed namely Balbir Singh Namberdar and Dharam Pal being close to defendants-respondents No. 2 and 3 have also colluded with the document writer while forging and fabricating the transfer deed.
3. Upon notice, suit was resisted by defendants-
respondents. Defendants-respondents No. 2 and 3 filed preliminary objections on the ground that the suit is false, frivolous and vexatious; that the plaintiffs have no locus standi to file the suit and to challenge the transfer deed dated April 23, 2007; that the suit is not properly valued for the purpose of court fee and jurisdiction; that the plaintiffs have no cause to file the suit and when the defendants- respondents are owners in possession of the land on the basis of SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh RSA No.5077 of 2014 --4--
transfer deed. On merits, it has been alleged that defendant- respondent No. 1 Inder Kaur executed a valid and genuine transfer deed of 1/6 share out of total land measuring 89 kanals 11 marlas which was executed with the Sub-Registrar. It has been emphatically denied by defendants-respondents that the parties to the suit constitute Joint Hindu Family or are covered by Hindu Law or that the property is ancestral coparcenary property. In fact, the father of plaintiff-defendant No.2 and 3 was taken away by the nature on September 16, 1976 and all his legal heirs/natural heirs inherited the property in equal shares. They had been residing separately in mess and even in cultivation. The property in the hands of Inder Kaur, being the widow of Hari Singh, was her separate property. Even, Hari Singh, father of plaintiffs and defendants No. 2 and 3 also executed a Will during his life time, bequeathing the suit property, which ultimately, devolved upon the legal heirs. Rest of the allegations has been denied and defendants-respondents prayed for dismissal of suit.
4. After analyzing the evidence brought on record by the parties and hearing learned counsel for the parties, suit of plaintiff- appellant was dismissed vide impugned judgment and decree dated May 14, 2014, passed by the trial court.
5. An appeal preferred by the present plaintiff-appellant was also dismissed vide judgment and decree dated September 11, 2014, passed by the ld. District Judge, Ferozepur. Thereafter, the plaintiff-appellant has approached this Court by way of filing instant regular second appeal, challenging the judgments and decrees SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh RSA No.5077 of 2014 --5--
passed by both the courts below.
6. While assailing the impugned judgments and decrees passed by both the courts below, it has been argued with vehemence by learned counsel for appellant that both the courts below have decided issues No. 1 and 2 collectively, though, there is overwhelming evidence on record, to come to the conclusion that appellants and proforma respondents No. 4 and 5 are entitled to declaration and suit property is ancestral coparcenary property but the ld. Trial court as well as first appellate court have misinterpreted and misconstrued the evidence. In fact, property was allotted to Jagat Singh at village Mishriwala, Tehsil and District Ferozepur, in lieu of the land left by him in Pakistan which was inherited by Hira Singh and then it devolved upon Hari Singh, father of appellant- defendant No. 2 and 3 and husband of respondent-defendant No.1, on the demise of Hari Singh. Meaning thereby, that the property in the hands of Hari Singh, father of the appellant-defendants No. 2 to 5 was ancestral coparcenary property, which devolved upon the plaintiff-appellant as well as defendant-respondents in equal shares. As defendant-respondent No.1 was not having any absolute right in the property in dispute, she was not competent to transfer the land by way of transfer deed dated April 23, 2007, without any legal necessity. In fact, alleged transfer deed dated April 23, 2007 is nothing but an outcome of fraud exercised by defendant-respondents No. 2 and 3 upon defendant-respondent No. 1. Moreover, she was also not in exclusive possession of property measuring 14 kanals 18 marlas, subject matter of the alleged transfer deed. Therefore, SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh RSA No.5077 of 2014 --6--
question of delivery of possession thereof by defendant-respondent No.1 to defendant-respondents No. 2 and 3 does not arise at all. Rather, the entire revenue record depicts the actual cultivating possession of the plaintiff-appellant over the part of the land, which is subject matter of the alleged transfer deed. Learned counsel for the appellant has referred to the copies of jamabandi, khasra girdawari in this regard. Moreover, evidence adduced by the plaintiff-appellant before the trial court is absolutely un-rebutted and unchallenged as the contesting defendants-respondents did not even opt to appear in the witness box and evidence was closed by orders of the court. In view of the un-rebutted and unchallenged evidence, suit of appellant-plaintiff deserves to be decreed. Since, both the courts below have misinterpreted the documentary as well as oral evidence, it has resulted into miscarriage of justice. The impugned judgments and decrees are not sustainable in the eyes of law and are liable to be set aside by way of acceptance of the instant appeal.
7. This Court has given a deep thought to the aforesaid submission made by learned counsel for the appellant and have minutely scanned the impugned judgments and decrees.
8. Undoubtedly, contesting defendants-respondents have not led any evidence and their evidence was closed vide order dated September 19, 2011, by the trial court but it is well settled that appellant-plaintiff has to stand on his own legs and he cannot take advantage of the weakness of defendants-respondents. Plaintiffs have approached this Court with a specific stand that property in suit was an ancestral coparcenary property in the hands of Hari Singh, SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh RSA No.5077 of 2014 --7--
predecessor in interest. But to the utter surprise, they have miserably failed to prove it. No doubt, they have placed on record documents/revenue record (Ex.P-1 to Ex.P-8) but there is nothing on record to suggest that property in suit was/is ancestral coparcenary property in the hands of Hari Singh. A glance at the revenue record placed on record by appellant-plaintiff clearly depicts that property in suit was once owned by Hira Singh and after his death, it devolved upon Hari Singh. When Hari Singh left for heavenly abode, property was inherited by his widow-Inder Kaur and his sons to the extent of 1/6 share each. Mutation of inheritance was incorporated and sanctioned as is evident from the copies of jamabandi and khasra girdwaris. Subsequent thereto, Inder Kaur executed a transfer deed in respect of land measuring 14 kanals 18 marlas being 1/6 share out of the total land measuring 89 kanals 11 marlas vide transfer deed dated April 23, 2007 and got registered the same with office of Sub Registrar, Ferozepur. Inder Kaur is alive and has been arrayed as defendant-respondent No.1. So, during the life time of Inder Kaur, appellant-plaintiff otherwise has no locus standi to challenge the transfer deed especially on the ground that it was the result of fraud or that deed was without consideration.
9. As has been observed above, there is no evidence at all to prove the ancestral and coparcenary nature of the property in suit. A perusal of documents placed on record by appellant-plaintiff clearly depicts that Inder Kaur defendant-respondent No. 1 is owner to the extent of 1/6 share of the property in dispute which has been transferred by her in favour of defendants-respondents No. 2 and 3. SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh
RSA No.5077 of 2014 --8--
The transfer deed is perfectly in order and suffers from no infirmity. The transfer deed has been duly executed and registered by defendant-respondent No.1 Inder Kaur.
10. All the contentions advanced by the learned counsel for appellant are without any substance and instant lis initiated by appellant-plaintiff is nothing but appears to be the outcome of a grudge against defendants-respondents No. 2 and 3 as defendant No. 1 did not opt to transfer her share in favour of appellant-plaintiff and his co-plaintiff(s).
11. In the light of aforesaid discussion, it can be safely concluded that judgment and decree passed by the trial court and affirmed by first appellate court are absolutely in consonance with the evidence and legal proposition applicable to the facts and circumstances of the case in hand. Since, there are concurrent findings, no interference of this Court is justified, especially, when there is no question of law involved much less the substantial question of law to differ with the findings recorded by both the courts below.
12. As an offshore of the above said discussion, this Court does not find any merit in the appeal. As such, the same is dismissed whereby impugned judgments and decrees passed by the courts below are affirmed.
13. No order as to costs.
(JASPAL SINGH) JUDGE December 22, 2014 sonika SONIKA 2015.03.23 15:16 I attest to the accuracy and authenticity of this document Chandigarh