High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 11 11 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 112 Mukesh & Oth Others RSA-945-2022 (O&M) Date of decision: 27.02.2025 ...Appellant(s) ...Respondent(s) Smt. Kitabo D o Devi & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Abhinav Sood, Advocat for the appellants. ocate NIDHI GUPTA, PTA, J. *** The plaintiffs are he n Second Appeal against the in concurrent jud t judgments and decrees of the le by learned Courts below whereby their suit for for declaration with consequential nd tial relief of joint possession and permanent inj t injunction, has been dismissed by by both the Courts below. 2. The parties shall here in af eir in after be referred to as per their status before t ore the learned Trial Court i.e. the ap nd he appellants as ‘the plaintiffs’ and the responden dents as ‘the defendants’. 3. Brief facts of the case ar he are that the plaintiffs are the daughter of de of defendant no.6 namely Shamshe in sher Singh. The facts as set out in the plaint, ar are that the Defendant No.6 on Shamsher Singh and his son defendant no. no.7 namely Virender Singh are co as e co-owners in joint possession as co-parceners i ers in equal share of ancestral agric alf gricultural land comprising in half share of agricu gricultural land (1 Kanal 1 Marla) 5 and also owner of half share (5 kanal 12 marl marla) also owner of 3/16 share o l 0 re of agricultural land (8 kanal 0 marla), owner ner of half share (80 kanal 6 marla are arla) and also owner of half share SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) (2 kanal 7 mar marla). Said Suit property is ancest Page 2 of 11 11 (cid:1) rty cestral and co-parcenary property in the hands
Legal Reasoning
ands of defendant No.6. As such ot such, Defendant No.6 was not competent to t to execute registered Sale Deed 08 Deed No.5417 dated 03.10.2008 (Ex.PW4/A) in in favour of defendant No.1 in res uit n respect of part of the above suit property to th to the extent of 20K-0M, which is gal h is wrong and without any legal necessity so so impugned sale is null and voi ion void; and subsequent mutation No.3278 sanc anctioned on basis of this Sale De er e Deed is also ineffective.Further declaration w n was sought that Release Deed 13, eed no. 7280 dated 8.3.2013, executed by d by defendant no.6 in respect of 26K nd 26K-3M from the above Suit land in favour of de of defendants no.2 to 5 and the sub is subsequent mutation no. 3420 is also null and and void, and not binding on the nd the rights of the plaintiffs and defendant no. no.7 as the same is executed and he and registered only to deprive the legal rights of s of the plaintiffs and defendant no. no.7. 4. Upon notice, the defenda ndant No.1 appeared and filed written statem atement, resisting the suit by inter inter alia stating that defendant No.1 is owner ner in possession of the agricultura ltural land measuring 20 kanal 0 marla, purcha rchased by her from defendant No.6 No.6 - Shamsher Singh vide Sale Deed dated 0 d 03.10.2008 for consideration of of Rs.27,50,000/- in respect of which mutatio tation No.3278 has been sanction ctioned in favour of defendant No.1. It is fur further stated in the written stat statement that Shamsher Singh and his brothe other Kartar Singh had got the suit l uit land by way of judgment and decree dated ated 14.12.1982 passed in Civil ivil Suit No.636/1982 titled as “Shamsher Sin r Singh & Others Vs. Kam Singh”. T h”. Thus, the property was self- SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) acquired prop roperty; and thus, Shamsher Singh ingh was fully competent to sell Page 3 of 11 11 (cid:1) the same or d or deal with it in any manner that hat he chose. It was denied that the plaintiffs iffs and defendants No.6 & 7 are are co-owners and are in joint possession as n as co-parceners in equal shares in es in the land in dispute; or that the land in di in dispute is ancestral agricultural ral land; or that the defendant No.1 has inhe inherited this property from her fa er father, grandfather and great grandfather b er but in fact the defendant No.1 is .1 is owner in possession of the agricultural la al land measuring 20 kanal 0 marl marla which she had purchased vide Sale Deed eed dated 03.10.2008 from Shams amsher Singh for a consideration of Rs.27,50,00 0,000/- and also for legal necess ssity. It is further stated in the written statem atement by defendant No.1 that hat the sale consideration was used by Sham Shamsher Singh for installing tube tube-well and to pay the loan amount of Sta f State Bank of India, Village Shodh odhapur branch and he has also constructed a d a house and has constructed the the boundary wall in the other land. The sale sale deed dt. 03.10.2008 has been e en executed and registered with the consent o nt of the plaintiffs as they are resi residing in the same house and the plaintiffs s were also consenting party rty and everything was in the knowledge of e of the plaintiffs from the very beg beginning. It is denied that the sale deed dt. dt. 03.10.2008 has been execut ecuted and registered wrongly, illegally, witho ithout legal necessity and not in th n the benefit of their estate, but in fact, the sal e sale deed has been executed for t for the benefit of the family and for legal nec necessity and the sale considera ideration was handed over to Shamsher Sin Singh by the answering defend fendant no. 1. The answering SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) defendant no. t no. 1 made a thorough inquiry be y before purchasing the land in Page 4 of 11 11 (cid:1) dispute from om defendant no. 6 and from the the revenue department as well as from the o he office of Sub-Registrar Panipat ipat. It is replied that the land measuring 26 26K-3M has already been transfe nsferred by Shamsher Singh in favour of the d the defendants no. 2 to 5 by way of y of release deed (Ex.PW4/B). It is denied that that the answering defendant is a is alienating or transferring her land to any ny other person. Rest of avermen ments made in the plaint was denied and de defendant no. 1 prayed for the dis e dismissal of the suit. 5. Defendants No.2 to 5 and and 7 filed their joint written statement inte inter alia stating that defendants N nts No.2 to 5 are owners in joint possession o n of ancestral agricultural land as land fully mentioned in Relinquishmen ment Deed No.7280 dated 08.03.20 3.2013 and the plaintiffs are not owners in pos possession of the suit land. It was a as admitted that the suit land is ancestral and and co-parcenary property of of defendant No.6. However, defendant No t No.6 was a man of bad habits, add , addicted to wine and gambling. It was denied ied that defendant No.6 had execut ecuted any registered Sale Deed No.5417 dated ated 03.10.2008 in favour of defen
Legal Reasoning
efendant No.1. It was contended that Sale Deed Deed if any executed by defendant ant No.6 in favour of defendant No.1 is false a lse and bogus; and the Release Dee Deed is legal and valid one. Rest of the averme rments in the plaint was denied; a d; and dismissal of the suit was prayed for. 6. On the basis of pleadings o es ngs of the parties, following issues were framed ed by the learned trial Court vide or e order dated 09.10.2013:- SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) Page 5 of 11 11 (cid:1) “1 Whether the plaintiff is entitled to the decree for is e declaration with consequential r tial relief of joint possession as prayed for in the prayer clause of e of the plaint? OPP 2. If the issue no. 1 is proved in fav in favour of plaintiff, whether the plaintiffs are entitled to a decree cree for permanent injunction as prayed for in the prayer clause of e of the plaint? OPP 3. Whether the suit of the plaint laintiffs have no locus standi to file the present suit? OPD fil 4. Whether the plaintiffs are esto estopped from filing the present suit by their own act and conduct? duct? OPD 5. Whether the suit of the plainti laintiff is not maintainable in the present form? OPD 6. Whether the plaintiffs have not e not come with clean hands and they have suppressed the mater aterial facts and true from the Court? OPD 7. Relief.” 7. On the basis of argumen ments/ pleadings, and oral and documentary ary evidence brought on record by by the parties, the learned trial Court decided ided issues No.1 and 2 against the t the plaintiffs and in favour of defendants; is s; issues No.3 to 6 against the pla e plaintiffs and in favour of the defendants; an s; and accordingly vide judgment an nt and decree dated 09.11.2017, suit of the pla plaintiffs was dismissed. The appe appeal filed by the plaintiffs was dismissed by t by the learned lower Appellate Cou Court vide judgment and decree dated 15.11.2 11.2021 affirming the judgment an t and decree dated 09.11.2017 passed by the the learned trial Court. Hence, the p the present second appeal. 8. Learned counsel for the ap e appellants/plaintiffs assails the impugned jud judgments and decrees of the lea learned Courts below by inter SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) alia submitting itting that the same are against law law and facts proved on file and Page 6 of 11 11 (cid:1) therefore, not not sustainable. It is submitted tha that issues No.1 and 2 were not inter-connecte ected and required a separate find finding. It is submitted that it is proven from om Ex.PW5/A (Intkhab/excerpts) ) that suit land is ancestral property of de f defendant No.6. It is apparent fr nt from the excerpts Ex. PW5/A (Intkhab/exce xcerpt) that the suit land is the the ancestral property of the Plaintiffs also lso as the same has been inherited rited by Defendant No.6 through four degrees o es of male lineal ascendents. The ex e excerpt carries evidence value u/s 35 of the the Evidence Act and has been pre prepared by competent person of revenue de e department. Thus, defendant No. No.6 was not competent to sell the land of th f the plaintiffs. The learned Courts urts below have fallen into error of law in treat reating the property as self-acquired uired property of defendant No.6 in the absence ence of any documentary evidence nce produced by the defendant No.1; and hen hence the impugned judgments and s and decrees are not sustainable in the eyes of s of law. 9. It is further argued that hat no judgment & decree can change the na e nature of the suit property. It rem t remains in the same stock. It is contended th that the learned Courts below ig w ignored that when in family settlement an t any share falls to a co-parcener in r in a family then the joint status as well as the the nature of the property remain mains the same and family also remains joint. int. The joint status is broken only only when there is partition by metes and bo d bounds.Hence, the Ld. Courts ha have fallen in error of law in deciding that hat suit land is not ancestral prope roperty. It is also submitted that SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) Page 7 of 11 11 (cid:1) the Ld. Court urtshave fallen into error of law in w in deciding that the plaintiffs are not entitle ntitled to relief of permanent injun njunction. The Appellants are in possession of n of law by fiction of notional part partition and by theory of joint Hindu family mily property. It is accordingly p ly prayed that the impugned judgments and s and decrees of the learned Courts urts below be set aside. 10. No other argument is made on behalf of the is appellants. 11. I have heard learned cou counsel for the appellants and perused the case file in great detail. 12. Brief facts of the case are are that the plaintiffs are the daughters of of defendant No.6 Shamsher Sin Singh. Defendant no.7 namely Virender Singh ingh is the son of Shamsher Singh. gh. Defendants No.2 to 4 are the sons and wife wife of defendant No.7, and def defendant No.5 is the wife of Shamsher Sing Singh. By way of present suit, the p the plaintiffs challenged the Sale Deed No.5417 417 dated 03.10.2008 executed by d by defendant No.6 in favour of defendant No. No.1 for land measuring 20 kanal 0 al 0 marlas; and the subsequent mutation No.3 No.3278 in favour of defendant no.1 no.1. The plaintiffs have also laid challenge to to the Release Deed No.7280da dated 08.03.2013executed by defendant No No.6 in favour of defendants No.2 No.2 to 5 for land measuring 26 kanal 3 marla arlas; and the subsequent mutatio ation No.3420. Therefore, total suit land is 46 s 46 kanal 3 marlas. 13. It is the contention of learn learned counsel for the plaintiffs that the suit la it land could not have been dispose posed of in the above manner by SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) defendant No No.6-Shamsher Singh on account o nt of the fact that suit land was Page 8 of 11 11 (cid:1) ancestral and and co-parcenary property. It ha has been submitted that the plaintiffs had had examined PW5-Rakesh Kumar, ar, Patwari to prove the three degrees of inh f inheritance establishing the ance ancestral nature; and therefore, the ancestral tral land as mentioned in the p e plaint could not have been
Decision
disposed of. 14. The above contention of t of the appellants that suit land was ancestra al in nature is liable to be outright ightly rejected as admittedly, the plaintiffs had n ad not produced any evidence to s to substantiate their contention. No such docum ocument was produced by the plain laintiffs to demonstrate that suit property was was ancestral. Even the Jamabandi ndi (Ex.P1) placed on record by the plaintiffs iffs does not depict the suit pro property as ancestral. On the contrary, it w was the categoric pleaded case ase of defendant No.1 that the property in th in the hands of Shamsher Singh w gh was self-acquired which had come to him t im through Civil Court decree. Even ven PW1 and PW3 had admitted in their cross ross-examination that suit proper perty was partitioned by Kam Singh, father o er of Shamsher Singh and Kartar Si ar Singh. From the above facts, it would not be t be incorrect to infer that Shams amsher Singh had acquired the disputed prop roperty through his father in a Cons Consent Decree. As such, in view of the above f ve facts, the suit property had lost i lost its ancestral character, if any. Suit property rty had become separate property erty of Shamsher Singh. In any event, in view view of the fact that the plaintif intiffs had failed to prove the ancestral natu nature of the suit property, the sam same was to be treated as self- SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) acquired prop property of Shamsher Singh; and th d therefore, he was entitled to Page 9 of 11 11 (cid:1) dispose the sa e same of in any manner that he ch e chose.As such, plaintiffs could not establish lish that Shamsher Singh was not not competent to execute the impugned Dee Deeds. 15. Moreover, a validly reg registered Sale Deed dated 03.10.2008 (E 8 (Ex.PW4/A) was executed by de y defendant No.6 in favour of defendant No. No.1 on receiving valuable sale con consideration of Rs.27,50,000/-. It has further ther come on record that Shamsh msher Singh had sold the said property for l for legal necessity; and the procee oceeds thereof were utilised by Shamsher Sing Singh for solemnising the marriage iage of his children, including the plaintiffs, and and other related family purposes sesfor installing tube-well and to pay the loan a an amount of State Bank of India, V ia, Village Shodhapur branch and he has also co o constructed a house and has cons constructed the boundary wall in land. the other land 16. It is also to be noted tha that the impugned Sale Deed (Ex.PW4/A) is ) is dated 03.10.2008; whereas pr s present suit was filed by the plaintiffs on 1 on 10.04.2013. As such, the suit suit of the plaintiffs was time- barred. Moreo oreover, it is admitted fact that d at defendant No.6 is still alive. Therefore, du , during his lifetime, plaintiffs cou could not have challenged the impugned Sale Sale Deed (Ex.PW4/A) or the Relinq elinquishment Deed (Ex.PW4/B). It has also com come on record that the plaintiffs tiffs are not in possession of the suit land; and and simplicitor suit for declaration tion without claiming possession is not maintain ntainable. SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) 17. As regards the testimon imony of PW5-Rakesh Kumar, Page 10 of 11 11 (cid:1) Patwari, findin ndings of the learned lower Appella ellate Court as contained in Para 16 of the judg judgment and decree dated 15.11.2 .11.2021, are relevant. The same read as follow llows: - have “16. To prove the ancestral na examined Rakesh ex appellants/plaintiffs PatwariMoharar, who has proved his cross-examination, Rakesh Ku he did not know Urdu and that words only and that he could not and that at the time of preparin the help of retired Patwari n Collector, Panipat had not appoi fo for helping him and that Khazan Khazan. Singh Patwari has no appellants/plaintiffs and therefor excerpts is not admissible in evide Ex. PW5/A, a mutation no. 2580 i Kaam Singh son of Lichhu son of N fa favour of Shamsher Singh, the p Kartar Singh sons of Kaam Singh suit land on 14.12.1982. When it its character of ancestral/copa property and the properties inclu the self acquired properties of the Singh and his brother Kartar defendant no. 6 Shamsher Singh same in any manner. Therefore, that the suit land was ancestr fa family property in the hands of Singh. Further, the defendant no chosen to contest the present s against exparte. No written state This clearly shows that the presen plaintiffs in collusion with the de plaintiffs are not in possession simplicitor suit for declaration wi l nature of the suit land, the Kumar, roved the excerpts Ex. PW5/A. In h Kumar (PW5) has stated that that he could have read some d not read anything except 1899 paring the record, he had taken ari namely Khazan Singh but ppointed Khazan Singh Patwari zan Singh lived near Madhuban. s not been examined by the refore, Hindi Translation of the evidence. Further, in the excerpts 580 is there, according to which, of Nayadar suffered a decree in he present defendant no. 6 and ingh son of Lichhu regarding the en it is so, then the suit land lost coparcenary/joint Hindu family including the suit land became of the defendant no. 6 Shamsher rtar Singh and therefore, the Singh was free to alienate the fore, it is not proved on record cestral/coparcenary/joint Hindu s of defendant no. 6 Shamsher t no. 6 Shamsher Singh has not ent suit and he was proceeded statement has been filed by him. resent suit has been filed by the e defendant no. 6. Further, the ssion of the suit land and a n without claiming possession is SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1) Page 11 of 11 11 (cid:1) not maintainable. Further, the PW4/A is dated 03.10.2008 execu Shamsher Singh in favour of the and the present suit has been 10.04.2013 and therefore, the su the point of challenging the concerned, is time barred. Furthe alive and during his lifetime, th challenged the impugned sale relinquishment deed Ex. PW4/B. I the law laid down in Smt. Ran Santa Bala Debnath and others Ar ArgunachalaMudaliar versus C 1945 Supreme Court Reports 2 applicable to the facts of the pres present case are quite different f the above said cases.” the impugned sale deed Ex. executed by the defendant no. 6 the defendant no. 1 Kitabo Devi been filed by the plaintiffs on e suit of the plaintiffs, so far as is the sale deed Ex. PW4/A rther, the defendant no. 6 is still , the plaintiffs could not have sale deed Ex. PW4/A or the /B. I have not dispute regarding Rani and another versus Smt. hers AIR 1971 SC 1028 and C.N. us C.A. MuruganathaMudaliar rts 244, but the same are not present case as the facts of the ent from the facts mentioned in 18. Learned counsel for the ap e appellants is unable to dispute or controvert t ngs. ert the aforesaid facts and findings. 19. 20. 27.02.2025 Sunena In view of the above, the he present appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.03.05 11:29 I attest to the accuracy and integrity of this document (cid:1)