Daya Nand and Net Ram sons of Tula Ram v. Tula Ram & Ors.

and Net Ram sons of Tula Ram appellant-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the present suit for a decree of declaration and possession against Tula Ram son of Phonsa Ram (since deceased), being represented by his legal representatives and others respondent-defendants (hereinafter to be referred as “the defendants”).

2. The case set up by the plaintiffs, in brief, in so far as relevant, was that they are co-sharers and in joint possession of their ancestral land in dispute. The plaintiffs and defendant No.1 constitute a joint Hindu family and are coparceners. Defendant No.1 is a Karta of the family, but the whole land is recorded in his name in the revenue record. According to the plaintiffs, defendant No.1, in collusion with defendant No.5, alienated the property measuring 03 kanals in favour of defendant Nos.2 to 4, vide registered sale deed dated 8.2.1999 for a sum of Rs.97,500/- without any legal necessity. Similarly, he (defendant No.1) gifted away the remaining property, vide different gift deeds to defendant Nos.6 and 7 without any legal basis and with a view to cause loss to the plaintiffs. The mutation bearing No.1228 has also been sanctioned on the basis of sale deed. They Regular Second Appeal No.1331 of 2010 2 have challenged the sale deed/gift deeds and mutation sanctioned thereof, being null and void. On the basis of aforesaid allegations, the plaintiffs filed the suit for declaration and possession against the defendants in the manner indicated here-in- above.

3. The defendants contested the suit and filed their respective written statements, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi of plaintiffs, estoppel, Court fee, non-joinder of necessary parties and concealment of facts. On merits, it was claimed by defendant Nos.2 to 4 that defendant No.1 owing to the legal necessity, alienated the land in their favour, being exclusive owner. The plaintiffs have no concern therefrom as they are living separately since long. They do not constitute joint Hindu family and property is not ancestral of the parties. They (defendant Nos.2 to 4) are bonafide purchasers for valuable consideration. The remaining defendants have also toed with the line of pleadings contained in the written statement of defendant Nos.2 to 4. 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.

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

5. In order to substantiate their respective pleaded cases, the parties produced on record the oral as well as documentary evidence.

6. The trial Court, after taking into consideration the evidence on record, dismissed the suit of the plaintiffs, by virtue of impugned judgment and decree dated 13.9.2007.

7. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiffs filed the appeal, which was partly accepted by the Ist Appellate Court, vide impugned judgment and decree dated 22.9.2009, the operative part of Regular Second Appeal No.1331 of 2010 3 which is as under:- “In the result, the present appeal of the appellants is partly accepted and the suit of the plaintiffs for declaration and possession decreed to the extent that the alienations made by the defendant no.1Tula Ram in favour of the defendants no.6 and 7 by way of sale deed and gift deeds are illegal, null and void and the same are hereby set aside and the sale deed by the defendant no.1 in favour of the defendants no.2 to 4 is legal and valid and to this extent, the appeal of the appellants-plaintiffs is hereby dismissed. However, both the parties are left to bear their own costs. Decree be prepared accordingly.”

8. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how, I am seized of the matter.

9. Having heard the learned counsel for the appellant-plaintiffs, having gone through the record with his valuable help and after considering the matter deeply, to my mind, there is no merit in the appeal.

10. However, the main argument of the learned counsel that no doubt, the Ist Appellate Court has partly accepted the appeal of the plaintiffs, with regard to the alienation of land in dispute by defendant No.1 in favour of defendant Nos.6 and 7, but fell in error in dismissing their suit regarding alienation of ancestral property by way of sale deed by defendant No.1 in favour of defendant Nos.2 to 4, is not only devoid of merit but misplaced as well.

11. As is evident from the record, the plaintiffs have claimed that they are members of joint Hindu family, land in dispute was ancestral and have challenged the sale deed in this respect on the ground of legal necessity. In that eventuality, a very heavy burden of proof was upon them to prove the ancestral nature of the property and that plaintiffs were members of joint Hindu family, particularly when it stands proved on record that the plaintiffs were residing separately since long. They have miserably failed in this relevant connection. The Regular Second Appeal No.1331 of 2010 4 trial Court dismissed the suit of the plaintiffs in its entirety. However, the Ist Appellate Court, while dealing with the case of sale deed (Ex.D1), observed as under:- “As per the perusal of the jamabandis Ex.P6 and Ex.P7, Tula Ram was owner in possession over the suit land. The defendants no.2 to 4 had purchased three kanal land out of the total land vide registered sale deed Ex.D1 dated

8.2.1999 for consideration of Rs.97500/-. The mutation on the basis of this sale deed had been attested in favour of the defendants no.2 to 4. As there was heavy onus on the plaintiffs to prove ancestral nature of the suit land and the suit land was the property of Hindu undivided family but there was no evidence on record produced by the plaintiffs to prove the ancestral nature of the land. Even the plaintiff no.4 Birender Singh in his cross examination has admitted that he and other brothers have been residing separately for the last 20 years. The defendant no.1 Tula Ram had filed the written statement before the learned trial court and admitted the alienation of the suit land in favour of the defendants no.2 to 4 and others at his free will and for legal necessity as the services were not being rendered by the plaintiffs to him. The sale deed Ex.D1 reflecting the recital therein that it was sold by Tula Ram for his legal necessity and hence, it is established that the defendant no.1 has alienated 3 kanal land in favour of the defendants no.2 to 4 vide sale deed Ex.D1 for legal necessity and hence, this sale deed is legal and valid and having a binding effect on the plaintiffs.”

12. At the same time, it was also held by the Ist Appellate Court that since defendant Nos.6 and 7 did not produce any evidence, in order to prove additional issue Nos.8-A and B, so, these issues were decided against them. They did not challenge these findings and have not filed appeal. So, the alienations in their favour by defendant No.1 were set aside by the Ist Appellate Court. Hence, the Courts below have rightly held that the sale deed (Ex.D1) executed by Regular Second Appeal No.1331 of 2010 5 defendant No.1 in favour of defendant Nos.2 to 4 was valid. They are bonafide purchasers for valuable consideration. They are in possession and have constructed their houses over it.

13. No meaningful argument has been raised by the learned counsel for the appellant-plaintiffs to assail the findings of the Courts below in this context. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiffs, in this relevant behalf, have already been duly considered and dealt with by the Courts below.

14. There is another aspect of the matter, which can be viewed from a different angle. 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 (i) the plaintiffs have utterly failed to prove that the property in dispute was ancestral or they were members of joint Hindu family; (ii) the sale deed (Ex.D1) executed by defendant No.1 in favour of defendant Nos.2 to 4 was valid and was for legal necessity and act of good management and (iii) defendant Nos.2 to 4 are in possession of the suit land and bonafide purchasers for consideration. 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 pointed out by the learned counsel for the appellant-plaintiffs, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

15. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of 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 Regular Second Appeal No.1331 of 2010 6 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 present case.

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

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

29.7.2010 AS