Punjab-Haryana High Court
Balbir Singh Alias Vir Singh vs Sukhdev Singh And Others on 29 April, 2009
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A. No. 1789 of 2009 (O&M)
Date of Decision:29.4.2009
Balbir Singh alias Vir Singh
.....Appellant
versus
Sukhdev Singh and others
....Respondents.
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL.
Present: Mr. Kuldip Sanwal, Advocate for the appellant.
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AJAY KUMAR MITTAL, J.
This regular second appeal filed by defendant No.1 is directed against the judgment and decree dated 13.10.2008 passed by the Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, confirming that of the Civil Judge (Junior Division), Gurdaspur dated 19.10.2004 whereby the suit of the plaintiff for declaration and permanent injunction was decreed.
Put shortly, the facts of the case are that the plaintiff filed a suit for declaration to the effect that the land measuring 76 kanals 16 marlas, fully detailed in the head note of the plaint, situated within the revenue estate of village Chhaurian Banger, Hadbast No. 610, Tehsil and District Gurdaspur (hereinafter referred to as the "suit land") was the joint Hindu coparcenary property as per jamabandi for the year 1994-95 and he and defendants No.1 to 10 were the coparceners of the same. A decree for permanent injunction restraining defendants No.1 R.S.A. No. 1789 of 2009 -2- and 2 from alienating any part of the suit land without getting the same partitioned and without legal necessity was also sought. It was pleaded that the plaintiff and defendants No.3 to 5 are the sons of defendant No.1 while the plaintiff and defendant No.3 are the real brothers born from the wedlock of defendant No.1 and Smt. Bachan Kaur. Said Bachan Kaur died and defendant No.1 got married with one Rattan Kaur and from this wedlock, defendants No.4 and 5 were born and as such they were step brothers of the plaintiff. Defendants No.6 to 10 are the sons of defendant No.2, the paternal uncle of the plaintiff and defendants No.3 to 5. It was further pleaded that the suit land was joint Hindu family coparcenary property of the plaintiff and the defendants, as the same had come from Heera Singh, a common ancestor of the parties and the great grand father of the plaintiff. After the death of Heera Singh and his son, Narain Singh, the suit land had become the joint Hindu family coparcenary property of the parties. Ealier Narain Singh, the grand father of the plaintiff and defendants No.3 to 10, was 'Karta' of the joint Hindu family and after his death, defendant No.1 became 'Karta' of the family with regard to the suit land as well as for the welfare of the plaintiff and defendants No.2 to 10. According to the plaintiff, defendants No.1 and 2 taking undue advantage of the wrong entries, threatened him to sell the suit land without any legal necessity. Defendant No.1 had sold 38 kanals 8 marlas out of the suit land and deprived the plaintiff from his share in the same and that the sale deed was collusive and was without consideration. Defendant No.11 threatened the plaintiff to make sale of the suit land in order to cause harm to him which gave rise to the filing of the suit, as mentioned above R.S.A. No. 1789 of 2009 -3- Upon notice, two sets of written statements were filed one by defendants No.1 to 10 and the other by defendant No.11. Defendants No.1 to 10 pleaded that the plaintiff and defendant No.3 were sons of Puran Singh as they were born out of the wedlock of Puran Singh and Smt. Bachan Kaur and defendant No.1 never married Bachan Kaur. He married Rattan Kaur in the year 1965 and out of this wedlock, defendants No.4 and 5 and one daughter, Harjinder Kaur, were born. It was further pleaded that the plaintiff had got no right, title or interest in the suit land whereas defendant No.1 along with his brother Beant Singh-defendant No.2, was the exclusive owner of the same. Defendant No.11, Rattan Kaur pleaded that defendant No.1 had sold the land measuring 38 kanals 8 marlas to her for a valid sale consideration of Rs.2,00,000/- vide sale deed dated 17.11.1999 and she was owner in possession of the same. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made.
The trial Court on appreciation of the evidence led by the parties came to the conclusion that the suit land was joint Hindu family coparcenary property of the parties and defendant No.1 was 'Karta' of the same. It was further held that the sale deed dated 17.11.1999 in favour of defendant No.11, second wife of defendant No.1, Balbir Singh, was illegal, null and void and was not binding on the rights of the plaintiff. Accordingly, the trial Court vide judgment and decree dated 19.10.2004 decreed the suit of the plaintiff .
Feeling aggrieved, the defendants except defendant No.3 and 11 approached the lower appellate Court which vide judgment and R.S.A. No. 1789 of 2009 -4- decree dated 13.10.2008 affirmed the findings recorded by the trial Court and dismissed the appeal. Hence, this appeal by defendant No.1 alone.
I have heard learned counsel for the appellant and have perused the record with his assistance.
Learned counsel for the appellant has made an endeavour to persuade this Court to re-appreciate the evidence available on record so as to differ with the findings recorded by the courts below but the same is not permissible in view of the provisions of Section 100 of the Code of Civil Procedure. However, he could not point out any illegality or perversity in the judgments and decrees passed by the courts below warranting interference by this Court in the regular second appeal. Both the Courts have returned concurrent findings of fact that the suit land was the joint Hindu family coparcenary property in the hands of defendant No.1, who was 'Karta' of the same. Further, the courts below had held the sale deed dated 17.11.1999 to be illegal, null and void and without legal necessity and, therefore, not binding on the rights of the plaintiff and these findings do not call for any interference by this Court in the regular second appeal.
No question of law much less the substantial question of law arises in this appeal for consideration of this Court particularly in the presence of admission of defendants No.1 and 2 in their cross- examination when they appeared as witnesses that the suit land was the joint Hindu family coparcenary property of the parties and that on the basis of the evidence on record, it stood proved that the sale of the land of his share in the coparcenary property by defendant No.1 in R.S.A. No. 1789 of 2009 -5- favour of his second wife, Rattan Kaur (defendant No.11) was a sham transaction and had been executed just to deprive the plaintiff of his share in that land.
In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs.
April 29, 2009 (AJAY KUMAR MITTAL)
gbs JUDGE
C.M. No. 5223-C of 2009 IN
R.S.A. No. 1789 of 2009
Present: Mr. Kuldip Sanwal, Advocate for the appellant.
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This is an application under Section 151 of the Code of Civil Procedure for condonation of 120 days' delay in refiling the appeal.
After hearing the learned counsel and perusing the application, the delay of 120 days in refiling the appeal is condoned.
CM stands disposed of accordingly.
April 29, 2009 (AJAY KUMAR MITTAL) gbs JUDGE