Shri Ram v. Jai Dayal @ Jai Pal & Ors.

Present: - Mr. P.P. Chahar, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) CM No.6432-C of 2010 For the reasons stated in the application, CM is allowed, delay of 455 days in refiling the appeal is condoned. CM No.6433-C of 2010 For the reasons stated in the application, CM is allowed, delay of seven days in filing the appeal is condoned. CM No.6434-C of 2010 For the reasons stated in the application, CM is allowed, delay in making good the deficiency in court fee is condoned. RSA No.2118 of 2010 This regular second appeal, by the plaintiff/appellant, is directed against the judgment and decree dated 6.9.2008, passed by the learned lower appellate Court, vide which the suit for declaration, filed by the plaintiff/appellant, stands dismissed. The plaintiff/appellant filed a suit for declaration pleading R.S.A. No. 2118 of 2010 (O&M) -2- therein, that Lal Chand, the owner of the property in dispute, was father of the plaintiff/appellant, who was adopted by his paternal uncle, Sh. Khuba. The plaintiff/appellant claimed, that he had become owner in possession of the suit land to the extent of half share being coparcenary ancestral property. It was also pleaded by the plaintiff/appellant, that his father Lal Chand, at the time of second marriage had agreed to give half share of the property to the plaintiff/appellant, and it was only thereafter that he married Smt. Siriya, real sister of Smt. Nathiya i.e. mother of the plaintiff/appellant. The plaintiff/appellant also challenged the civil court decree in favour of defendant No.2. The suit was contested. Besides taking preliminary objections, the contentions raised on merit were disputed. The learned trial Court accepted the case set up by the plaintiff/appellant, and held, that he was owner in possession as co- sharer of the suit land, having been transferred to him under the arrangement by his father at the time of his second marriage. The decree dated 1.9.1994 passed by the civil court was held to be bad in law by treating the property to be ancestral property. The learned trial Court passed decree of declaration, declaring the plaintiff/appellant to be owner in joint possession with the defendants. Other issues raised with regard to maintainability, locus standi and estoppel as also of limitation, were decided against the defendant/respondents. The defendant/respondents preferred an appeal against the judgment and decree passed by the learned trial Court. The learned lower appellate Court reversed the finding R.S.A. No. 2118 of 2010 (O&M) -3- recorded by the learned trial Court, primarily on the ground, that the plea raised by the plaintiff/appellant, that it was the normal practice, that half of the property was transferred to the son at the time of second marriage, could not be accepted on the basis of presumption, as the plaintiff/appellant had failed to plead or prove any custom. The learned lower appellate Court held that the finding of the learned trial Court holding the plaintiff/appellant to be owner of the property under the arrangement, was liable to be reversed. The learned lower appellate Court also held, that the plaintiff/appellant failed to prove, that the property in the hands of Lal Chand was ancestral coparcenary property, for the reason that as per the documentary evidence, the property was inherited by him by way of gift and not by natural succession, therefore, it could not be said to be ancestral coparcenary property. In view of the findings, referred to above, the learned lower appellate Court also held, that the plaintiff/appellant failed to prove any fraud or mis-representation, therefore, the decree passed by the civil court, could not be set aside in absence of proof of fraud and mis- representation, as the property was not held to be ancestral coparcenary property. In view of the findings referred to above, the judgment and decree passed by the learned trial Court was reversed and the suit filed by the plaintiff/appellant was dismissed. Learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial questions of law: - R.S.A. No. 2118 of 2010 (O&M) -4- “1. Whether the judgment and decree passed by the learned lower appellate Court is outcome of mis- reading of evidence, therefore, perverse?

2. Whether the learned lower appellate Court was justified in reversing the well-reasoned judgment of the learned trial Court without assigning any reason?” In support of the substantial questions of law, the learned counsel for the appellant vehemently contended, that the plaintiff/appellant had produced evidence to show that at the time of second marriage half of the property was agreed to be given to the plaintiff/appellant. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The plaintiff/appellant had not pleaded any family settlement nor any family settlement was proved, rather the stand was based on custom prevalent. This plea of the plaintiff/appellant, was accepted by the learned trial Court on presumption of existence of such custom in the villages of Haryana. The learned lower appellate Court was, therefore, right in reversing the finding of the learned trial Court for the reason, that it is well settled law, that in order to succeed on plea of custom, it has not only to be pleaded but also proved. In absence of pleading and proof, no notice of custom can be taken. The findings by learned appellate Court holding property to be non-ancestral is also correct, merely because a property is inherited, it does not automatically become a coparcenary property. It is also well established that if the property is inherited other than by natural succession, it ceases to be ancestral coparcenary property. The property R.S.A. No. 2118 of 2010 (O&M) -5- by Lal Chand was inherited by gift hence it could not be said to be Joint Hindu Family coparcenary property. It cannot be disputed that in order to challenge the decree, on the basis of fraud and mis-representation, burden was on the plaintiff/appellant to prove it, but appellant failed to prove, as no evidence was led in support of this plea. The substantial questions of law raised for the reasons stated, are answered against the appellant. No merit. Dismissed. May 28, 2010 R.S. (Vinod K. Sharma) Judge