Maina v. Phool Kumar & Ors.

of Dharam Pal appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit seeking a decree for declaration to the effect that she is owner to the extent of 1/3rd share in the land in dispute and the release deed, mutation and the revenue record in favour of Phool Kumar and others respondent-defendants No.1 to 4 (hereinafter to be referred as “the contesting defendants”) are illegal, based on fraud and not binding on her rights, with a consequential relief of permanent injunction restraining the contesting defendants from interfering in her peaceful possession and from alienating the suit land in any manner.

2. The case set up by the plaintiff, in brief, in so far as relevant, was that one Bhagwana, father-in-law of the plaintiff, was the owner of the land in dispute. After his death, mutation of inheritance bearing No.1522 was sanctioned in favour of his legal representatives without issuing any notice to the plaintiff. Defendant Nos.1 and 2, in connivance with defendant Nos.3 and 4 were stated to have got executed and registered the release deed on 29.5.2003 of land measuring 58 kanals 5 marlas. The plaintiff claimed that as per the family settlement, she is legally entitled to 1/3rd share in the suit property. Regular Second Appeal No.3225 of 2009 2

3. Levelling a variety of allegations, in all, according to the plaintiff, although, she is joint owner and in possession to the extent of 1/3rd share in the property in dispute, but the mutation of inheritance, release deed, mutation thereof and all subsequent revenue record are wrong, illegal, based on fraud and not binding on her rights. On the basis of the aforesaid allegations, the plaintiff filed the present suit for a decree of declaration/permanent injunction against the defendants, in the manner indicated here-in-above.

4. The defendants contested the suit and filed the written statement, inter-alia, taking certain preliminary objections of, maintainability of the suit, locus standi, cause of action of the plaintiff, non-joinder, mis-joinder of necessary parties, Court fees and estoppel. On merits, according to the defendants, the land in dispute is not ancestral coparcenary property. Dharam Pal, husband of the plaintiff, was separated by his father Bhagwana, during his life time. The mutation of inheritance of Bhagwana was sanctioned by way of natural succession and the plaintiff did not raise any objection in this regard. No family settlement ever took place between the parties. They are serving their mother and sister. It was alleged that due to service rendered by them (defendant Nos.1 and 2), defendant Nos.3 and 4 transferred their respective shares in the disputed land in their favour by executing the release deed. Defendant Nos.3 and 4 filed their separate written statements completely toeing with the line of defence, taken up by defendant Nos.1 and 2. It will not be out of place to mention here that all the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case.

6. The parties brought on record the oral as well as documentary Regular Second Appeal No.3225 of 2009 3 evidence, in order to substantiate their respective stands.

7. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiff, vide impugned judgment and decree dated 13.11.2006.

8. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 16.1.2009.

9. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

10. Having heard the learned counsel for the appellant-plaintiff, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

11. However, the main argument of the learned counsel that since the plaintiff is proved to be the owner to the extent of 1/3rd share in the property in dispute, so, the Courts below ought to have decreed her suit, is neither tenable, nor the observations of Hon'ble Apex Court in case Smt.Raj Rani v. The Chief Settlement Commissioner, Delhi and others AIR 1984 Supreme Court 1234 and this Court in cases Raj Rani v. Radhey Shyam and another (1994-2) P.L.R.681 and Gaje Singh v. Jagga Singh and others (2009-4) P.L.R. 332, are at all applicable to the facts of this case, wherein, it was observed that “where a Hindu dying after the enforcement of the Act leaving behind his widow, three sons and three daughters, the devolution of his Mitakshara coparcenary property would be distributed, in view of explanation 1 to S.6 of Hindu Succession Act and at the time of death of Karta, a notional partition would be deemed to be taken place among the coparcenars and it would be divided among the heirs keeping in view the proviso to Section 6 of the Act”.

12. Possibly, no one can dispute with regard to the indicated observations, but the same would not come to the rescue of the plaintiff in the Regular Second Appeal No.3225 of 2009 4 present controversy.

13. As is evident from the record that the plaintiff claimed that the property in dispute was ancestral coparcenary. Her husband Dharam Pal, being the member of a joint Hindu family, was entitled to 1/3rd share by his birth and after his death, his legal representatives are entitled to the same extent, which was stoutly denied by the defendants. In that eventuality, a heavy burden of proof was upon the plaintiff to prove that the land in dispute was ancestral and her husband Dharam Pal was a member of joint Hindu family, but she has miserably failed in this respect. As per jamabandi for the year 1932-33 (Ex.P12), Bhagwana alongwith his brothers, namely, Jagar and Dana were shown to be owners to the extent of 1/3rd share each, while Nathu son of Shola and Madu son of Jai Lal have been shown as owners to the extent of 1/3rd share. The same entries were repeated in jamabandi for the year 1936-37 (Ex.P13).

14. It is not a matter of dispute that subsequently, in the consolidation proceedings, the entire land in dispute was so merged and mixed with the non- ancestral portion that the same cannot be separated. If the land is so merged and mixed with the other non-ancestral land, which could not be separated, then, it loses its status of ancestral property and would be deemed to be a self acquired property of predecessor-in-interest of the parties. The trial Court has rightly placed reliance upon the judgment of Hon'ble Apex Court in case Mara and others v. Mst.Nikko alias Punjab Kaur and another AIR 1964 Supreme Court 1821. No record (excerpt) has been brought on record by the plaintiff to prove that the suit property was actually allotted in lieu of ancestral land. How and in what manner, the property in dispute is ancestral coparcenary, is not proved on record.

15. The perusal of the record would reveal that Bhagwana was the owner of the property in dispute. He had widow Smt.Beera (defendant No.3) and three sons namely, Dharam Pal deceased-husband of the plaintiff, Phul Kumar (defendant No.1), Balbir (defendant No.2) and one daughter Smt.Sajjan (defendant Regular Second Appeal No.3225 of 2009 5 No.4). The argument of the learned counsel that Smt.Sajjan, daughter of Bhagwana was not entitled to the extent of 1/3rd share, is again not only devoid of merit but misplaced as well.

16. After the commencement of Hindu Succession Act, a daughter is also entitled to inherit the property of her father as full owner. Hence, after the death of Bhagwana, the property devolved upon his heirs by virtue of natural succession to the extent of 1/5th share including the plaintiff, whose husband Dharam Pal pre- deceased his father Bhagwana. Therefore, the property of Bhagwana was rightly mutated in accordance with the respective shares of the parties in the manner indicated here-in-above. Thus, the contrary arguments of learned counsel “stricto sensu” deserve to be and are hereby repelled, under the present set of circumstances.

17. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff, in this relevant connection, have already been duly considered and dealt with by the Courts below.

18. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the plaintiff has miserably failed to prove that the property in dispute was ancestral/coparcenary joint Hindu family property or her deceased husband Dharam Pal was the member of joint Hindu family. She has got no right, title or interest to challenge the release deed and mutation thereof and she has failed to prove how and in what manner, she is entitled to ownership to the extent of 1/3rd share out of the disputed property. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been Regular Second Appeal No.3225 of 2009 6 pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this relevant behalf.

19. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the instant case,

20. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff.

21. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

20.7.2010 AS