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2009 DIGILAW 907 (PNJ)

Harpreet Singh v. Gurbhej Singh

2009-05-08

RAKESH KUMAR GARG

body2009
JUDGMENT RAKESH KUMAR GARG J. - This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration and joint possession to the effect that plaintiff being coparcener in the ancestral land is the owner/co-sharer to the extent of the equal share in the suit land, has been dismissed. 2. In brief, the suit of the appellant was that the suit land was inherited by respondent No.2 from his forefathers and was ancestral and Joint Hindu Family property of the plaintiff and the defendants in equal share. The plaintiff being the coparcener had a right in the suit property by birth. It is further case of the plaintiff/appellant that he was born out of the wedlock between respondent No.1(defendant No.1) and one Balwinder Kaur. A divorce took place on 22.06.1981. As such, Balwinder Kaur and defendant No.1 separated from each other. In that arrangement, it was also decided that the plaintiff would be looked after and brought up by defendant No.1. However, he did not comply with this condition, therefore, he had to earn his livelihood by himself. At the time of the divorce he was a child and he was not aware of his rights. He has come to know about this on meeting his mother. He requested respondent/ defendant No.1 to admit his claim who refused to do so. Hence this suit. 3. The suit was contested by the defendants. In the written statement defendant No.1 raised various preliminary objections. On merits, it was denied that the suit land was Joint Hindu Family or ancestral property. As per defendant No.1 the suit land and some other land was purchased by Tara Singh-defendant No.2 and Hazara Singh. After the partition between them, the suit land fell into the share of Tara Singh-defendant No.2 and the same is not held by him as Karta. Marriage with Balwinder Kaur and the birth of plaintiff out of that wedlock was not disputed. Factum of their separation was also admitted. It was further admitted that he was handed over the custody of the plaintiff but later on the plaintiff was taken away by Balwinder Kaur and thereafter the plaintiff never came back to defendant No.1. While controverting the other material averments made in the plaint, dismissal of the suit was prayed for. 4. Factum of their separation was also admitted. It was further admitted that he was handed over the custody of the plaintiff but later on the plaintiff was taken away by Balwinder Kaur and thereafter the plaintiff never came back to defendant No.1. While controverting the other material averments made in the plaint, dismissal of the suit was prayed for. 4. In his separate written statement the defendant No.2 raised various preliminary objections and stated that the suit land was his self-acquired property and the same was not inherited by him from his ancestors. He also claimed that the suit property was purchased along with his brother Hazara Singh. Defendant No.2 also prayed for dismissal of the suit. In his replication to the written statement plaintiff controverted the preliminary objections raised by the defendants. While denying the other contents of the written statement plaintiff reiterated the correctness of the contents of his plaint. 5. From the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to the declaration as prayed for? OPP 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no locus standi and cause of action to file this suit? OPD 5. Relief. 6. After hearing both the sides the trial Court while deciding issues No.1 to 3 held that the suit land was coparcenary property qua the appellant but held that the appellant was not entitled to the declaration as prayed for. Appellant had not made any averment regarding the other coparceners of the Joint Hindu Family property. 7. Feeling aggrieved from the judgment and decree of the trial Court, the appellant filed an appeal. Defendant No.1 also filed cross-objections seeking to set aside the findings of the trial Court on issue No.3, wherein it was held by the trial Court that suit land was coparcenary property. The Lower Appellate Court vide judgment and decree held that the suit land was not a coparcenary property qua the appellant and thus allowed the cross-objections filed by defendant No.1. The Lower Appellate Court also held that the suit by the appellant for joint possession during the lifetime of his father was not maintainable and dismissed the appeal. 8. The Lower Appellate Court vide judgment and decree held that the suit land was not a coparcenary property qua the appellant and thus allowed the cross-objections filed by defendant No.1. The Lower Appellate Court also held that the suit by the appellant for joint possession during the lifetime of his father was not maintainable and dismissed the appeal. 8. Still not satisfied, the plaintiff has filed the present appeal challenging the judgment and decrees of the Courts below. 9. I have heard learned counsel for the parties. Undisputedly, the suit land was purchased by respondent No.2, who is grandfather of the appellant vide sale deed dated 01.06.1964 Ex.D-2. The Lower Appellate Court after appreciating evidence on record held that the appellant failed to prove that the suit land devolved upon respondent No.2 by survivorship from his father and held that the same was not coparcenary property qua the appellant. Learned counsel for the appellant was unable to point out any evidence to the contrary from the record. Thus, the plaintiff-appellant has no case. 10. Otherwise also in Raghubir Singh vs. Dalip Singh & Anr. 2004(2) Civil Court Cases 249, this Court held that suit for joint possession during lifetime of father is not maintainable as suit for joint possession is apparently a circuitous method for seeking the partition of the property in the lifetime of father which is not permissible. In Sitara Lal vs. Shiv Kumar and others AIR 1986 (P & H) 112, this Court held that a member of Joint Hindu Family cannot perdict at any given moment what his share in the Joint Hindu Family property was and his share becomes defined only when a partition takes place. Thus, no member, while the joint family continues, is entitled to any definite share of the joint property. Thus, even if the property in dispute was coparcenary the suit of plaintiff was not maintainable. No substantial question of law arises in this appeal. Dismissed.