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2012 DIGILAW 279 (HP)

Ved Parkash v. Shanti Swaroop

2012-05-14

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the common judgment and decree dated 14.10.2009 rendered by the learned Additional District Judge, Una in Civil Appeal No. 34/2007 and Cross Appeal No. 40/2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a suit for declaration to the effect that the land measuring 0-56-02 hectares bearing Khewat No. 25, Khatauni No. 54, Khasra No. 509, 510, 514, 641 and 971 as entered in Missal Haquiat Bandibast Jadid for the year 1986-87 situated in village Sunehra. Tehsil and District Una is Joint Hindu co-parcenary property. Entries in the name of respondent-defendant (hereinafter referred to as defendant for convenience sake) in the column of ownership on the basis of alleged gift deed dated 24.8.1967 is wrong, illegal and null and void. The land was originally owned by Ganga Ram. Thereafter, it was succeeded by Munshi from whom it devolved to his sons Atma Ram and Harnam Dass. Plaintiff and defendants are descendants of Harnam Dass. According to the plaintiff, parties were governed by Mitakshara law and the suit land was a Joint Hindu Family co-parcenary property. According to him, no co-parcner or Karta of the family can make alienation or gift the Joint Hindu Family coparcenary property. According to the plaintiff, the gift could not be made in favour of the defendant by Harnam Dass. The gift deed was registered and the entries were also made in the mutation register. The gift deed was made on 24.8.1967. 3. Suit was contested by the defendant. The defendant has claimed that the suit land was of Harnam Dass and was his exclusive property. The plaintiff knew about the gift, but did not challenge the same. The parties were living separately since 1960. The will was executed by Harnam Dass on 27.1.1965. Harnam Dass died on 31.12.1973. 4. Replication was filed by the plaintiff. Issues were framed on 13.2.1997 by the learned Civil Judge (Junior Division). The learned trial court decided that the suit land was co-parcenary property. However, the suit was dismissed on 31.5.2007 on the ground of limitation. Plaintiff filed an appeal bearing Civil Appeal No. 34/2007 against the judgment and decree dated 31.5.2007 before the learned Additional District Judge, Una. Issues were framed on 13.2.1997 by the learned Civil Judge (Junior Division). The learned trial court decided that the suit land was co-parcenary property. However, the suit was dismissed on 31.5.2007 on the ground of limitation. Plaintiff filed an appeal bearing Civil Appeal No. 34/2007 against the judgment and decree dated 31.5.2007 before the learned Additional District Judge, Una. Defendant has also filed Cross-Appeal No. 40/2007 against the judgment and decree dated 31.5.2007. Cross-Appeal was filed on the ground that the findings recorded by the learned trial court that the suit property was co-parcener was not legal. Learned Additional District Judge dismissed the Civil Appeal No. 34 of 2007 preferred by the plaintiff and Cross-Appeal No. 40 of 2007 was allowed. It is in these circumstances, the Regular Second Appeal has been filed against the judgment and decree passed in Civil Appeal No. 34 of 2007 and Cross-Appeal No. 40 of 2007. 5. Mr. Ajay Sharma, on the basis of the substantial questions of law framed, has argued that both the courts below have misread and misconstrued the oral as well as documentary evidence led by the parties. He has supported the judgment of the trial court whereby the findings have been returned that the property was Joint Hindu Family co-parcenary property. He then argued that the suit was within limitation. 6. Mr. N.K. Thakur, learned Senior Advocate has supported the judgment and decree passed by the learned Additional District Judge. 7. I have heard the learned counsel for the parties and have gone through the judgment and pleadings carefully. 8. As far as the question whether the suit land is Joint Hindu Family co-parcenary property or not, the issue has already been decided by the learned Senior Sub Judge, Una vide judgment dated 10.5.2002 Ex.D-10. This suit was filed by the defendant. The following issue were framed by the learned Senior Sub Judge: "Whether the defendant is a member of a Joint Hindi Family Co-parcenary property and the defendant has acquired the interest by birth in it, as alleged?" 9. This issue was decided against the present plaintiff. The judgment of the learned Senior Sub Judge dated 10.5.2002 was affirmed by the learned District Judge on 5.1.2004. The judgment of learned District Judge dated 5.1.2004 has been upheld by this Court in Regular Second Appeal No. 43 of 2010 decided on 5.1.2011. This issue was decided against the present plaintiff. The judgment of the learned Senior Sub Judge dated 10.5.2002 was affirmed by the learned District Judge on 5.1.2004. The judgment of learned District Judge dated 5.1.2004 has been upheld by this Court in Regular Second Appeal No. 43 of 2010 decided on 5.1.2011. Learned Sub Judge has over looked Ex.D-8 to D-11. Once specific findings have been recorded that the suit land was not Joint Hindu Family co-parcenary property, the same issue could not be raked up by filing subsequent suit. The same is barred under the principles of res judicata. Moreover, the judgment was between the same parties. The findings recorded by the first appellate court that the suit property was not Joint Hindu Family co-parcenary property are affirmed. 10. Mr. Ajay Sharma has argued that the suit was within limitation. In the instant case, gift deed is dated 24.8.1965. Mutation was attested on 3.7.1975. The parties have also inherited the land by way of will. Plaintiff had the knowledge about the gift. He has remained silent. There is no infirmity in the findings of the learned trial court and the first appellate court that the suit in these circumstances was barred by limitation. Learned First appellate court has correctly appreciated the oral as well as documentary evidence of the parties. 11. Accordingly, there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.