JUDGMENT Dharam Chand Chaudhary, J. Aggrieved by the judgment and decree dated 23.6.2000 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No. 119-CA/13 of 2000/1999, dismissed thereby the Civil Suit bearing No.68/1 of 1990/T-23/1/1991 on reversal of the judgment and decree passed by the trial court decreed on 30.3.1999, the appellant, hereinafter referred to as the plaintiff, has approached this Court by filing the present appeal with the prayer to set aside the same. 2. The challenge to the judgment and decree impugned before this Court in the present appeal is on the ground, inter-alia, that the land entered in Khata-Khatauni No. 8min/33, Khasra No.491/304, measuring 5 Biswas, situated in village Shamsherpur, Tehsil Paonta Sahib, hereinafter referred to as the suit land, was ancestral and the family consisting of plaintiff and defendants No.2 and 3 being a joint Hindu family, was governed by Mitakshra Hindu law and the findings so recorded by the trial Court were erroneously set aside. According to the plaintiff, since the defendants miserably failed to prove that the suit land was sold to defendant No.1 for legal necessity, therefore, the suit was rightly decreed by the trial Court. However, the decree so passed has been erroneously set aside by the learned lower appellate Court. Further, according to the plaintiff-appellant, a new case is made out by the learned lower appellate Court by concluding that the suit property was of joint Hindu family but not coparcenary and that the parties were governed by custom and not by Hindu Law. Such findings are stated to be not supported by any evidence and rather self contradictory. Further, according to plaintiff-appellant, the evidence reveals that the suit land was inherited by the father of the plaintiff from his father on death and hence, it was ancestral property for all intents and purposes. As per Sections 6 and 30 of the Hindu Succession Act, the interests of deceased coparcener in coparcenary property have to be inherited under Section 8 of the said Act by his legal heirs, but the learned lower appellate Court has nullified the concept of coparcenary property after 1956. Hence, such findings are stated to be not sustainable. It is averred that all points in issue were not decided by the learned lower appellate Court, as no findings have been returned on the issue of legal necessity. Hence, such findings are stated to be not sustainable. It is averred that all points in issue were not decided by the learned lower appellate Court, as no findings have been returned on the issue of legal necessity. The factum of suit land being inherited by the father of plaintiff i.e. defendant No.2 from his father Shri Rania and during consolidation of holdings came to be allotted to him under different numbers is also stated to have not been properly appreciated. Further, according to the plaintiff-appellant, the factum of exchange inter se the brothers could not destroy the ancestral nature and character of land has also been overlooked and the learned lower appellate Court being a Court of fact has failed to consider the oral evidence available on record in its right perspective and also that the application under Order 41 rule 47 CPC has also been erroneously dismissed. The oral and documentary evidence available on record is also stated to be misread and misinterpreted. It is pointed out that from documentary evidence, especially copy of sale deed Ext.P-15, copy of jamabandi for the year 1949-50 (Ext. P-4), for the year 1953-54 (Ext.P-5), copy of Misal Hakiat for the year 1956-57 (Ext. P6), copies of Mutation Ext.P-13, P-14 and Ext .DB, it is crystal clear that the suit land in the hands of defendant No.2 was ancestral being Karta and hence, he was not competent to alienate the same without legal necessity. 3. This appeal has been admitted on the following substantial questions of law: “1. Whether on the admitted facts and evidence that the suit property came in the hands of Shri Rattan Singh from his father, the findings of learned District Judge without discussing the oral and documentary evidence and ignoring the admissions f the defendant in holding that the property was not ancestral or coparcenary property, are sustainable? 2. Whether the findings that after coming into force of Section 8 of the Hindu Succession Act, there cannot be any concept of coparcenary property are sustainable in law? 3. Whether the judgment of learned Distt. Judge in not recording any basis or examining the fact that the sale was not for legal necessity and consideration, has vitiated the judgment? 4. Whether the findings that after coming into force of Section 8 of the Hindu Succession Act, there cannot be any concept of coparcenary property are sustainable in law? 3. Whether the judgment of learned Distt. Judge in not recording any basis or examining the fact that the sale was not for legal necessity and consideration, has vitiated the judgment? 4. Whether in the absence of plea and proof that the parties were governed by custom, the findings recorded by the trial Court that the case was not governed by Mitakshra Hindu law but by custom is sustainable? 4. I have heard learned counsel on both sides and gone through the record. 5. On behalf of the plaintiff-appellant it has been contended that the suit property being coparcenary inherited by defendant No.3 Rattan Singh from his father Rania could have not been sold to defendant No.1. According to learned counsel, even if the suit property came to defendant No.2 by way of exchange with coparcenary property, the same is also to be treated as coparcenary property for all intents and purposes and that the property received in exchange of ancestral property shall remain ancestral for all intents and purposes. It has been further contended that the fatcum of suit land being sold for legal necessity does not stand proved on record and the same being received in lineal descent from great grand-father, grand-father and father by survivorship could have not been sold without any legal necessity. Also that the coparcenary property and self acquired property of defendant No.2 in the case in hand is identifiable and cannot be said to be intermingled. 6. In reply to the arguments advanced on behalf of the plaintiff-appellant, learned counsel representing defendant No.1 has forcefully contended that how Shri Rania, the predecessor-in-interest of defendant No.2 inherited the suit land, no link stands established from the evidence on record and to the contrary, the evidence available on record falsifies the case of the plaintiff that the suit property was coparcenary. It has been further contended that if a major chunk of property of vendor is self acquired and the coparcenary property smaller one, the same has also to be treated as self acquired and since it is difficult to identify as to which khasra number pertains to ancestral property and which was self acquired, therefore, no opinion could be formed that the entire land was ancestral. It is also contended that coparcenary property is one inherited in lineal descent from great-grand-father, grand-father and father by the son and only then it can be termed coparcenary property and in the case in hand it stands proved on record that the land was inherited by defendant No.3 by way of succession and not by survivorship. Also, that the suit land has not come by devolution as had it been so, defendant No.3 would have been shown owner in possession thereof with his father. Hence, the suit land having come to him by inheritance cannot be termed as coparcenary property. Further, according to learned counsel, the suggestion given to DW-1 Rajinder in his cross-examination that the suit property came to defendant No.2 after the death of his father, itself shows that the suit land is not coparcenary property. 7. The fate of this appeal has to be decided in the light of the above submissions. However, before that it is desirable to take note of the case of the plaintiff as set out in the plaint and that of the contesting defendant No.1 Rajinder Singh in the written statement. 8. Plaintiff is son of Shri Rattan Singh defendant No.2 and brother of Shri Sher Singh defendant No.3. Defendant No.1 is the vendee to whom defendant No.2 has sold land measuring 5 biswas entered in Khata Khatauni No.8/15-31 Khasra No.304/208/134/1 vide sale deed Ext. P-15. Plaintiff admittedly was minor at the time of this transaction. On attaining majority, he sought the sale deed Ext.P-15 to be set aside on the ground that the suit land being ancestral and coparcenary property could have not been sold without any legal necessity and as there was no legal necessity for the vendor, his father defendant No.2 to sell the suit land, he is entitled to decree of possession of suit land by quashing the sale deed. As per further case of the plaintiff, the suit land was inherited by his father defendant No.2 from his grand-father Shri Rania alongwith other legal heirs. It is alleged that his father was addicted to liquor and gambling and sold the joint Hindu family property without any legal necessity. 9. In the written statement, the stand of the contesting defendant No.1 is that plaintiff and defendants No.2 and 3 are not governed by Mitakshra branch of Hindu law nor was there any joint Hindu family. It is alleged that his father was addicted to liquor and gambling and sold the joint Hindu family property without any legal necessity. 9. In the written statement, the stand of the contesting defendant No.1 is that plaintiff and defendants No.2 and 3 are not governed by Mitakshra branch of Hindu law nor was there any joint Hindu family. According to defendant No.1, the suit land was also not coparcenary property and rather self acquired property of defendant No.2 and the plaintiff and defendant No.3 had no right, title or interest over the same during the life time of their father, defendant No.2. Above all, according to defendant No.1, defendant No.2 being the absolute owner of the suit land had sold the same to him for legal necessity and he being a bonafide purchaser is owner in possession thereof and also that the suit has allegedly been filed by the plaintiff in collusion with his father defendant No.2 and brother defendant No.3. 10. On pleadings of the parties, following issues were framed by the trial Court: 1) Whether the suit land is part of joint Hindu family ancestral property of plaintiff and defendants No.2 and 3, if so, what effect? OPP 2) Whether the suit land has been disposed of by defendants No.2 and 3 for illegal and immoral purpose? OPD 3) Whether the sale of the suit land is for legal necessity and consideration? OPD 4) Whether the suit is collusive with defendant No.2 as alleged? OPD 5) Whether the plaintiff has no locus-standi to file the present suit? OPD 6) Relief. 11. Learned trial Court had initially dismissed the suit by a common judgment. However, on being remanded by the first Appellate Court with a direction to decide the same vide a separate judgment, the suit was decreed vide judgment and decree referred to hereinabove. 12. Whether the plaintiff has successfully pleaded and proved the ancestral nature of the suit land and the same is coparcenary or not, has to be determined in the light of para 221 of Hindu Law by Mulla, 21st Edition, which reads as follows: “Ancestral Property- (1) Property inherited from paternal ancestor- All property inherited by a male Hindu from his father, father’s father or father’s father’s father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. 13. Further, the concept of coparcenership under Mitakshra Law has been elaborated by the Apex Court in Hardeo Rai Vs. Sakuntala Devi and others, (2008) 7 SCC 46 , which reads as follows: “19. We may at the outset notice the characteristics of a Mitakakashra Coparcenary from the decision of this Court whereupon Mr. Rai has placed strong reliance being State Bank of India vs. Ghamandi Ram (Dead) through Gurbax Rai: AIR 1969 SC 1330 . Therein this Court was concerned with a notification issued by the Government of Pakistan in terms of Section 45 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. We may, however, notice the dicta laid down therein: "According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I. 1-27). The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter." 14. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter." 14. The land sold to defendant No.1 is 5 Biswas bearing Khata-Khatauni No.8/15-31, Khasra No. 304/208/134/1 as has come in para 6 of the plaint. The decree for possession sought is of land entered in Khata-Khatauni No.8min/33 Khasra No.491/304. Although evidence, documentary in nature, in the form of Jamabandis Exts. P-1 to P-10 right from the year 1948-49 till 1982-83 has been produced during the course of trial, however, nothing, except that defendant No.2, the father of plaintiff had inherited the same on the death of his father Shri Rania, can be made out therefrom that the same was ancestral alone and not self acquired. Also, nothing can be made out from these documents that Rania had inherited the suit land from his grand father. In the absence of any such feature of ancestral property having been proved from the evidence on record, it cannot be said that the suit land is ancestral property and hence, it could have not been disposed of without legal necessity. 15. Above all, jamabandis Exts. P-1 to P-10 nowhere suggest that the suit land sold to defendant No.1 in the hand of great-grand-father of the plaintiff being ancestral property had come from him to the grand father of the plaintiff i.e. Shri Rania. Such revenue record is also not suggestive that the suit land had devolved upon the plaintiff by birth and rather it is his own case, as pleaded in the plaint and also has come in the evidence produced by him that the suit land was inherited by his father from his grand-father Rania on his death. Meaning thereby that his father had inherited the suit land by way of survivorship and not by way of devolution. 16. On the other hand, the coparcenary property is the one in which a coparcener gets right immediately by birth. No doubt the plaintiff and his father defendant No.2 and brother defendant No.3 are the members of joint Hindu family, however, it cannot be said by any stretch of imagination that the suit land is coparcenary property. 16. On the other hand, the coparcenary property is the one in which a coparcener gets right immediately by birth. No doubt the plaintiff and his father defendant No.2 and brother defendant No.3 are the members of joint Hindu family, however, it cannot be said by any stretch of imagination that the suit land is coparcenary property. Merely because the plaintiff and defendants No.2 and 3 are the members of joint Hindu family, the suit property cannot be said to be coparcenary for the reasons stated hereinabove and also that the plaintiff and his brother defendant No.3 at this stage have no right, title or interest therein. 17. True it is that on the death of Shri Rania, the father of defendant No.2, succession by way of inheritance opened in his favour and also in favour of his brothers Saran Singh and Gurbachan Singh and they all inherited the estate of Shri Rania. Later on they mutually agreed to exchange the land as per their possession and mutation No.344 Ext. P14 to this effect came to be entered on 4.6.1974. The order of mutation so passed, however, was reviewed vide order dated 9.12.1977 and as per this order land entered in Khasra Nos. 16/1, 16/3, 19/1, 208/134/1, 208/134/2 and 135/2 measuring 29-8 Bighas came to be recorded, by way of exchange, in the names of Saran Singh and Rattan Singh in equal shares, whereas land bearing Khasra No.14/2, 46/2/2, 42 and 66/2 measuring 19-13 bighas was entered in the name of Gurbachan Singh. 18. No doubt the land received in exchange of ancestral land has also to be treated as ancestral one, however, as discussed hereinabove, there is no evidence that the land received in exchange by defendant No.2 alongwith his brother Saran Singh had been inherited by their father Shri Rania from his father, grand father or great-grand father. 19. What were the old Khasra numbers of the suit land, no iota of evidence has come on record. 19. What were the old Khasra numbers of the suit land, no iota of evidence has come on record. As a matter of fact, in order to establish the coparcenary nature of the suit land, the plaintiff was required to plead and prove that the same being ancestral property in the hands of his great grand-father, grand-father and father had come to him by way of devolution and not survivorship and further to link its identity by showing its old khasra numbers vis-à-vis new khasra numbers carved out during consolidation proceedings/settlement. Neither any such case has been pleaded nor the evidence produced. Without any pleading and proof, plaintiff cannot seek the decree for possession of suit land, that too by quashing the sale deed Ext. P-15 duly executed in favour of defendant No.1, who is none-lese but a bonafide purchaser thereof, for the reason that defendant No.2 was owner in possession thereof in the revenue record. 20. The position as explained hereinabove makes it crystal clear that the learned lower appellate Court has not committed any illegality or irregularity while holding that the plaintiff has failed to prove the suit land being ancestral and coparcenary property. 21. If coming to the oral evidence, plaintiff himself has stepped into the witness box as PW-1. In rebuttal, he has examined his mother Smt. Gian Kaur PW-2 and sister Kumari Amrit Kaur. A close scrutiny of their testimony reveals that nothing suggesting as to how the suit land is coparcenary, has come on record except that defendant No.2 had inherited the same from his father Shri Rania on his death. No doubt they all stated that defendant No.2 had never maintained family nor borne expenses on the education of plaintiff, defendant No.3 and their sister or on the medical treatment of his wife PW-2 Smt. Gian Kaur and rather he was a drunkard and had been gambling and consuming opium and had not sold the suit land for any legal necessity lead to the only conclusion that the suit land was not sold by proforma defendant No.2 for legal necessity. It is also significant to note that the contesting defendant No.1 has failed to prove satisfactorily that proforma defendant No.2 had sold the suit land to him on account of legal necessity. It is also significant to note that the contesting defendant No.1 has failed to prove satisfactorily that proforma defendant No.2 had sold the suit land to him on account of legal necessity. The Vendor, proforma defendant No.2, who could have thrown some light qua this aspect of the matter has allowed himself to be proceeded against ex parte and not opted to contest the suit for the reasons best known to him. However, when it has not been satisfactorily proved that the suit land was coparcenary property, the plea of legal necessity loses its significance hence hardly of any help to the plaintiff’s case for the reason that the coparcenary/ancestral nature of the suit property has not been established strictly in accordance with the legal parameters discussed supra. 22. Plaintiff, his father defendant No.2 and his brother defendant No.3 may be Jat Sikh and agriculturist, however, in Himachal Pradesh and not in Punjab. Therefore, para 59 of Customary Law has no application in this case. The Judgment of Punjab and Haryana High Court in Mihan and another Vs. Inder & another, AIR 2008 Punjab & Haryana 200 is also not applicable in this case. Otherwise also, on coming into being the Hindu Succession Act, the custom or usage applicable in the matter of succession stand abrogated, as provided under Section 4 of the Act. For taking this view, I have taken support from the judgment of our own High Court in Kartari Devi and others Vs. Tota Ram, 1992(1) SLC 402. Therefore, on this score also, no case in favour of the plaintiff is made out. 23. In such a situation, the learned lower appellate Court has taken correct view of the matter while accepting the appeal and setting aside the judgment and decree passed by the learned trial Court. What to speak of substantial questions of law referred supra, this Court even has not found any illegality or irregularity having been committed by the learned lower appellate Court while setting aside the judgment and decree of the trial Court. 24. For the foregoing reason, the appeal fails and the same is accordingly dismissed. There is, however, no order as to costs.