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2014 DIGILAW 1443 (HP)

Sudesh Kumari v. Jeeto

2014-10-16

TARLOK SINGH CHAUHAN

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JUDGMENT : Talrok Singh Chauhan, J. 1. This appeal is directed against the judgment and decree dated 09.11.2012 passed by the learned Additional District Judge, Fast Track Court, Una, District Una, in Civil Appeal No. 42/2009 whereby he affirmed the judgment and decree dated 26.06.2009 passed by the learned Civil Judge (Junior Division), Barsar, Camp at Una, in Civil Suit No. 215/1993, RBT No. 2/2007, dismissing the suit of the appellants plaintiffs (hereinafter referred to as the plaintiffs). 2. "Key facts" leading to the filing of the appeal may be noticed thus. 3. The plaintiffs had filed a suit for declaration with consequential relief of permanent prohibitory injunctions qua the land comprised in Khewat No. 26 min, Khatauni Nos. 50 and 51, Khasra No. 518/2 and 519, land measuring 0-03-84 hectares, situate in Tika Chhatarpur, Tehsil and District, Una (hereinafter referred to as the suit land). It was averred that plaintiff No. 1 is the wife of defendant No. 2 Prem Dutt Sharma (now deceased), whereas, plaintiffs No. 2 to 4 are his minor sons and daughter constituting a Joint Hindu Family governed by the Hindu Laws and custom prevalent in the Brahmin community in the area. It was also averred that the defendant No. 2 was an idle person and was not contributing anything towards the liabilities of the family. He was an addict to alcohol and the suit land and the entire other property was owned by the defendant No. 2 which is ancestral property as the same has been inherited from common ancestors by succession and as such the property of defendant No. 2 is co-parcenary ancestral property and the defendant No. 2 was not in exclusive possession over the property and he was, therefore, not competent to transfer any part of the ancestral property without the consent of other co-parceners. 4. It was further averred that defendant No. 2 without any legal necessity sold the suit land to defendant No. 1 illegally and the said transaction is void, illegal having no effects on the rights and title of the plaintiffs and the sale deed executed by defendant No. 2 in favour of defendant No. 1 is the result of misrepresentation, undue influence and the defendant No. 1 got the same executed fraudulently. The plaintiffs averred that the defendant No. 1 on the basis of the sale deed is threatening to take forcible possession of the suit land and to raise construction thereon. When the plaintiffs requested the defendants to desist from their illegal acts and to admit the rights of the plaintiffs, they refused to do so. The plaintiffs have sought a decree for declaration to the effect that the plaintiffs and defendant No. 2 are joint owners in possession of the suit land being Joint Hindu Family co-parcenary ancestral property and the plaintiffs being the coparceners constitute a Joint Hindu Family with defendant No. 2 and the sale deed executed by defendant No. 2 in favour of the defendant No. 1 is without any consideration and legal necessity and the same has been executed just to deprive the plaintiffs of their legal rights and further sought declaration to the effect that mutation No. 81 dated 17.12.1992 attested in favour of the defendant No. 1 on the basis of the sale deed is illegal, null and void. The plaintiffs have also sought consequential relief of permanent prohibitory injunction retraining the defendant No. 1 from taking forcible possession or raising any construction over the suit land and in the alternative also sought a decree for possession. 5. The defendant No. 1 contested the suit by filing written statement, whereas, defendant No. 2 did not appear in the Court and was proceeded ex-parte. The defendant No. 2 died during the pendency of the suit and his name was deleted. The defendant No. 1 took preliminary objections that the present suit has been filed by the plaintiffs in collusion with defendant No. 2, she also questioned the maintainability, locus-standi, cause of action, estoppel and valuation. On merits, the defendant No. 1 has submitted that plaintiffs and defendant No. 2 do not constitute Joint Hindu Family and as such they are not governed by the Hindu Laws and no custom is prevalent in the Brahmin community in the area as alleged. It was averred that the defendant No. 2 was very laborious person and being Head/Karta of the family used to manage the property and the suit land was self acquired property of the defendant No. 2 and the same is not Joint Hindu Co-parcenary ancestral property and the defendant No. 2 being in exclusive possession over the suit land was competent to transfer the same. It was also averred that the defendant No. 2 had to repay the loan taken from Kangra Land Mortgage Bank, Una and that being the legal necessity, the defendant No. 2 sold the suit land vide registered sale deed dated 03.11.1992 for a consideration of Rs. 12,500/- to defendant No. 1 which was paid by her to defendant No. 2 before Sub Registrar, Una and since then the defendant No. 1 is owner in possession over the suit land. The defendant No. 1 averred that on the very next day of registration of the sale deed, the defendant No. 2 had repaid the loan amount to the aforesaid Bank and denied that the sale deed is the result of misrepresentation and undue influence. It was further averred that the defendant No. 1 is in exclusive owner in possession of the suit land and has every right to raise construction and, therefore, the question of taking forcible possession does not arise and prayed for dismissal of the suit. 6. Plaintiffs filed replication wherein they denied the averments made in the written statement filed by the defendant No. 1 and reiterated and re-asserted the averments made in the plaint. 7. On the pleadings of the parties, the following issues were framed by the learned trial Court on 05.12.1996:- 1. Whether the plaintiffs and defendant No. 2 are joint owners in possession of the suit land as alleged? OPP 2. Whether the sale of suit land by defendant no. 2 in favour of defendant No. 1 is without any consideration, legal necessity and is null and void as alleged? OPP. 3. Whether the present suit is in collusion with defendant No. 2 as alleged? OPD 4. Whether the suit in the present form is not maintainable as alleged? OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the plaintiffs have no cause of action? OPD 7. Whether the plaintiffs are estopped by their acts and conduct to file the present suit? OPD 8. Whether the suit has not been properly valued? OPD. 9. Relief. 8. After recording and evaluating the evidence, the learned trial Court on 26.06.2009 dismissed the suit filed by the plaintiffs. OPD 6. Whether the plaintiffs have no cause of action? OPD 7. Whether the plaintiffs are estopped by their acts and conduct to file the present suit? OPD 8. Whether the suit has not been properly valued? OPD. 9. Relief. 8. After recording and evaluating the evidence, the learned trial Court on 26.06.2009 dismissed the suit filed by the plaintiffs. The appeal filed by the plaintiffs against the judgment and decree of the learned trial Court was also dismissed by the learned lower appellate Court on 09.11.2012 and this is how the matter has reached before this Court. 9. I have heard the learned counsel for the appellants and respondent No. 1 and gone through the records of the case carefully. 10. Shri Tara Singh Chauhan, learned counsel for the plaintiffs-appellants has vehemently contended that the judgments and decrees passed by the Courts below are totally based upon misreading and mis-appreciation of Ex. PW3/A, Ex.PW3/B, Ex.P1, P2, P3 and PX which are copies of jamabandies, missal hakiyat respectively. He also contends that the findings of the learned Courts below with respect to the Joint Hindu Co-parcenary property are not sustainable. 11. In order to prove that the property was Joint Hindu Co-parcenary property, PW-1 has stated that the property had been inherited by her husband from his ancestors and they had Joint Hindu Family. PW-2 Amar Nath also stated that the defendant No. 2 was having Joint Hindu Family and had no necessity to alienate the suit land. Save and except the aforesaid bald statements, nothing has come on record to even remotely suggest that the property had been inherited by the husband of the plaintiff No. 1 from his father's father or from father's father's father because in order to determine whether the suit land is Joint Hindu Co-parcenary property, a person has to prove that he has acquired interest in the joint co-parcenary property being the son, grandson or great grandson of the holder of the joint property. In other words, three generations next to the holder in the unbroken male descendants would qualify the property to be a Joint Hindu Co-parcenary property under the Hindu Mitakshra Law. 12. In other words, three generations next to the holder in the unbroken male descendants would qualify the property to be a Joint Hindu Co-parcenary property under the Hindu Mitakshra Law. 12. No doubt, the plaintiffs examined PW-4 Ram Murti, Kanungo, who produced on record Ex.PW4/A, a perusal whereof shows that earlier the suit land was recorded as Shamlat Deh Hasab in the year 1913-14 and the same was partitioned vide mutation No. 181 dated 12.03.1927 and the same fell to the ownership of Bhagwan Dass, son of Gainda vide mutation No. 632 and was inherited by Sahib Ram (father of the defendant No. 2) and other sons of Bhagwan Dass. Thus, what has been proved is that the suit land was acquired by the defendant No. 2 from his father Sahib Ram vide mutation No. 954, who inherited the suit property from his father Bhagwan Dass. Therefore, the suit property cannot be termed to be Joint Hindu Co-parcenary property in the hands of defendant No. 2 and the plaintiffs along with defendant No. 2 cannot be said to be members of the constituted Joint Hindu Family. Resultantly, the defendant No. 2 had every right to alienate the suit land for his own use. 13. Insofar as the copies of the jamabandies and missal hakiyat are concerned, they in no manner carry forward the case of the plaintiffs because the basic allegation of the plaintiffs challenging the alienation made by the defendant No. 2 on the ground of property in his hands being co-parcenary property, has remained unsubstantiated and not proved. These documents in themselves in no manner prove that the plaintiffs and defendant No. 2 in fact constituted a Joint Hindu Co-parcenary family and, therefore, this Court need not to go into the question as to whether there was any legal necessity for the defendant No. 2 to alienate the property or not. 14. The findings recorded by the learned Courts below are pure findings of fact and no question of law much less of substantial question of law arises for consideration. Accordingly, the appeal is dismissed leaving the parties to bear their own costs. 15. Pending applications, if any, shall stand disposed of. Appeal disposed of.