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2017 DIGILAW 871 (HP)

Sakinder Lal v. Vikram Jit

2017-07-28

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The plaintiff instituted a suit against the defendants, claiming therein that a declaratory decree be pronounced against the defendants. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom by the defendants before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it dis-concurred with the verdict recorded by the learned trial Court. In sequel thereto, the plaintiff/appellant herein is driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the original defendant No.1 (who died during the pendency of the appeal before the learned First Appellate Court and whose name was deleted on 1.3.1999) was the son of Gokal Ram son of Sampuran. Defendant No.1 had four sons, namely, Sakinder Lal (plaintiff), Vikram jit, Shashi Pal and Balbir Singh, defendants No. 2 to 4. Defendant No.1 owned land in three villages, namely, village Kheri Bacholaran, Jheera and Kanguwali. Plaintiff claims 1/5 shares in the suit land, details whereof given in the plaint, on the grounds that the suit land is ancestral in the hands of his father, defendant No.1 and it was an ancestral joint Hindu family co-parcenary property of the plaintiff and defendants No.1 to 4. The plaintiff's grievance is that defendant No.1 executed a gift deed on 14.3.1989 in favour of defendants No. 2 to 4 excluding the plaintiff in respect of the suit land at village Kheri Bacholaran and Kanguwali without any legal necessity and, therefore, he filed a suit for declaration, seeking to impugned the said gift deed being illegal, and for consequence relief of joint possession. 3. The defendants contested the suit and filed written statement. In their written statement, the defendants have taken preliminary objections inter alia valuation, non joinder, locus standi, cause of action and estoppel. On merits, it is denied that the suit land is the joint Hindu family co-parcenary property. It is asserted that the plaintiff and defendants do not constitute joint Hindu undivided family, or they are the co-parceners of the suit land. The defendants' case is that about 18 years back, Paira Singh separated from defendant No.1 and plaintiff has been residing separately. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. The defendants' case is that about 18 years back, Paira Singh separated from defendant No.1 and plaintiff has been residing separately. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the suit land is ancestral Joint Hindu family co-parcenary property of the plaintiff and defendants Nos. 1 to 4, as alleged? OPP. 2. Whether the defendant No.1 and defendants No.2 to 4 constitute a Hindu Joint undivided family and are the coparceners of the suit land? OPP. 3. Whether the defendant No.1 has gifted away all the suit land in favour of defendants No.2 to 4 by a registered gift deed dated 14.3.1999 without legal necessity? OPP. 4. Whether the suit is not maintainable? OPD. 5. Whether the suit does not lie in the present form? OPD. 6. Whether the suit is not properly valued for the purpose court fees and jurisdiction, as alleged? OPD. 7. Whether the suit is bad for non joinder and misjoinder of necessary parties? OPD. 8. Whether the plaintiff has no locus standi to institute the present suit? OPD. 9. Whether the plaintiff has no cause of action? OPD. 10. Whether the plaintiff is estopped from filing the present suit on account of his act, conduct and deeds? OPD. 11. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the defendants/respondents herein, before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 19.12.2002, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. When the appeal came up for admission, on 19.12.2002, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the learned District Judge was justified in not considering the statement of DW-1, worthy father of the Appellant and Respondent in which DW1 has unequivocally admitted that “whatever land we i.e. defendant No.1, Paira and Sidhu have got, that we have got from our father Gokal, in succession and this land was purchased by our father Gokal Ram”? 2. Whether the learned District Judge was justified and could ignore the settled law by the Hon'ble Supreme Court in Civil Appeal No.3549 of 1979, dated 12.8.1993, titled as Guru Amarjit Singh Appellant Vs. Rattan Chand and others, Respondents, wherein it was held that: “It is settled law that the entries in Jamabandi are not proof of title. They are only statements for revenue purpose. It is for the parties to establish the relationship or title to the property unless there is unequivocal admission.” Substantial questions of Law No.1 and 2: 7. The validity of gift deed executed by defendant No.1 vis-a-vis defendants No.2 to 4, gift deed whereof is borne in a registered instrument executed on 14.3.1989, is the fulcrum of the lis, whereupon the parties are engaged. The espousal reared by the plaintiff in respect of the aforesaid gift deed losing its validity, is anchored upon the factum of the disability of defendant No.1, to execute the instrument of gift, disability whereof is espoused to arise from the factum of the suit property holding or partaking the trait or character of ancestral coparcenary property. The learned First Appellate Court has ad nauseam delved into the documentary evidence, for making unearthings therefrom in respect of the suit property partaking trait of its being hence construable to be ancestral coparcenary property, trait whereof would ingrain it, on disclosure emanating from the relevant two mutations attested prior to the suit property being thereafter received by defendant No.1 qua it therefrom in uninterrupted/unbroken chain flowing to defendant No.1. His endeavour, however, displayed that the relevant revenue records not making any disclosure in respect of two mutations attested prior to the suit property being received by defendant No.1 hence revealing that it thereafter had unbrokenly flowed to defendant No.1. His endeavour, however, displayed that the relevant revenue records not making any disclosure in respect of two mutations attested prior to the suit property being received by defendant No.1 hence revealing that it thereafter had unbrokenly flowed to defendant No.1. The reason for the learned first Appellate Court making the aforesaid conclusion ensued from the factum of their occurring no collation inter se the extant relevant revenue record vis-a-vis the earlier revenue record nor any compatibility existing inter se the extant khasra numbers vis-a-vis the earlier thereto apposite khasra numbers. 8. Despite the aforesaid documentary evidence not making any display in respect of hence the suit land being construable to be ancestral coparcenary property, yet the learned counsel appearing for the appellant has contended that with an admission occurring in the statement of DW1 and its holding echoings that the land owned by him and by one Sidhu being received from their predecessor-in-interest one Gokal also its holding communication qua the land standing purchased by the aforesaid Gokal, being sufficient to outweigh the effect of the revenue records omitting to make apposite displays in respect of the suit property holding trait of ancestral coparcenary property. Even though, the aforesaid submission is extremely frail. to outweigh the credible reason recorded by the learned first Appellate Court for its dispelling the espousal of the plaintiff, that gift deed suffers invalidation on account of it being executed in respect of land holding trait of it being construable to be ancestral coparcenary property, nonetheless, assumingly if it has some vigour, tenacity thereof is eroded by the factum of the apposite admission, on which reliance is placed by the plaintiff also making a display of the contesting parties receiving the suit property from one Gokal, besides of the latter acquiring it by purchase. Corollary whereof, is with the defendant admitting that the suit land was acquired by purchase by one Gokal, the common predecessor-in-interest of the parties at contest, thereupon it became the self acquired property of one Gokal also when on his demise it was inherited intestate by the contesting parties, thereupon, it for the first time fell into the hands of the heirs succeeding one Gokal besides obviously when law enjoins that only when the last male holder evidently comprises the third male lineal whereupto the suit land has unbrokenly traveled, thereupon, alone the property being construable to be ancestral coparcenary property, whereas evidently, the suit property traveling since the demise of one Gokal onwards upto one male generation only, therefrom, the corollary thereof is that defendant No.1 is legally entitled to execute gift deed in favour of defendants No.2 to 4. Consequently, it held that the gift deed executed by defendant No.1 in favour of defendants No.2 to 4 is valid in the eyes of law. 9. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, both the substantial questions of law are answered in favour of the respondents and against the appellant. 10. In view of above discussion, there is no merit in the instant appeal, which is accordingly dismissed. Consequently, the impugned judgment and decree rendered by the learned First Appellate Court in Civil Appeal No. 62 of 1993 on 2.8.2002 is maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.