Research › Search › Judgment

Punjab High Court · body

2019 DIGILAW 2506 (PNJ)

Harkanwal Singh v. Surjit Singh

2019-09-09

LISA GILL

body2019
Judgment Mrs. Lisa Gill, J.:-Appellant--plaintiff is aggrieved of judgment and decree dated22.12.2014 passed by the learned Civil Judge (Junior Division), Dasuyawhereby the suit for declaration filed by him was dismissed as well asjudgment and decree dated 01.08.2017 passed by the learned AdditionalDistrict Judge, Hoshiarpur, whereby his appeal was dismissed. 2. Brief facts necessary for adjudication of the case are that theappellant--plaintiff filed a suit seeking declaration to the effect that land, asdetailed in the plaint, is the coparcenary property of the plaintiff anddefendants No. 1 and 2 and that the plaintiff is a coparcener in possession ofthe same besides two transfer deeds dated 02.07.2010 executed by his fatherSurjit Singh--defendant No. 1 in favour of Palwinder Pal Singh (plaintiff’sbrother) being illegal, sham transactions without necessity and ineffectivequa the rights of the plaintiff. Consequent relief of permanent injunction isalso sought. It is pleaded that the plaintiff’s grandfather namely Arvail Singhowned a big chunk of land in West Pakistan, which was ancestral propertyin his hands. After partition of the country, the plaintiff’s ancestors migratedto India. The suit property besides other property was allotted in lieu of theland left by Arvail Singh in Pakistan. Grandfather of the plaintiff--GurAmar Singh is stated to have succeeded to his father’s estate by way ofnatural succession and after the death of Gur Amar Singh, Surjit Singh,father of the plaintiff and defendant No. 1 inherited the suit property. It isfurther stated that Surjit Singh had received the property in his capacity asKarta of the coparcenary family when the plaintiff was born and the plaintiffalongwith his father and grandfather constituted a Joint Hindu coparcenary.Therefore, the plaintiff had a share in the suit property held by Surjit Singhby virtue of being a member of the coparcenary. It is alleged that twotransfer deeds dated 02.07.2010 were managed by defendant No. 2 (realbrother of the plaintiff) from defendant No. 1 in a clandestine manner. Thetransfer is claimed to be without any legal necessity, therefore, ineffectivequa the plaintiff as the suit property is ancestral coparcenary property.Defendant No. 2 threatened to take possession of the suit property. Hence,the suit was filed. 3. The suit was contested with the assertions that estate of GurAmar Singh devolved upon the plaintiff and Surjit Singh--defendant No. 1in equal shares on the basis of a registered will dated 02.06.2010 executedby Gur Amar Singh. The plaintiff even transferred/sold a part of theproperty, which he had inherited from Gur Amar Singh. Hence,the suit was filed. 3. The suit was contested with the assertions that estate of GurAmar Singh devolved upon the plaintiff and Surjit Singh--defendant No. 1in equal shares on the basis of a registered will dated 02.06.2010 executedby Gur Amar Singh. The plaintiff even transferred/sold a part of theproperty, which he had inherited from Gur Amar Singh. In case, the suitproperty is claimed to be ancestral, the plaintiff too has no right to the suitproperty, which fell to him on the basis of the will of Gur Amar Singh. It isdenied on merits that Arvail Singh was a big land owner in West Pakistan orthat he migrated to India and property in lieu thereof was allotted to him. Itis denied that Surjit Singh--defendant No. 1, father of the plaintiff anddefendant No. 2 inherited the property as Karta of the coparcenary family.The transfer deed is claimed to be a valid and legal document executed bydefendant No. 1 in favour of defendant No. 2 in lieu of services rendered byhim, besides love and affection for him. Defendant No. 2 had earlierexecuted a valid Will dated 02.06.2010 in favour of defendant No. 2 in hissound disposing mind. The transfer deeds were executed by way ofabundant caution. Dismissal of the suit was prayed for. 4. Following issues were framed by the learned trial Court on thebasis of the pleading:- 1. Whether the plaintiff is entitled to the declaration as prayedfor?OPP. 2. Whether plaintiff is entitled to permanent injunction asprayed for?OPP 3. Whether suit of plaintiff is not maintainable? OPD. 4. Whether the plaintiff is stopped from filing this suit by hisown act and conduct?OPD2 5. Whether plaintiff has no cause of action and locus standi tofile the suit ? OPD 6. Relief. 5.Evidence was led by both the parties. 6. Learned trial Court on considering the evidence on recordconcluded that the plaintiff failed to prove his case on the basis of theevidence led, consequently the suit was dismissed. Appeal filed by theappellant was also dismissed by the learned Additional District Judge,Hoshiarpur vide judgment dated 01.08.2017. Aggrieved therefrom, presentappeal has been filed. 7. Learned counsel for the appellants vehemently argues that boththe learned courts below have erred in dismissing the suit filed by theappellant--plaintiff. It is submitted that the nature of property remainsancestral and coparcenary, even if half of the property of Gur Amar Singhhad devolved upon the appellant himself by way of a Will. Aggrieved therefrom, presentappeal has been filed. 7. Learned counsel for the appellants vehemently argues that boththe learned courts below have erred in dismissing the suit filed by theappellant--plaintiff. It is submitted that the nature of property remainsancestral and coparcenary, even if half of the property of Gur Amar Singhhad devolved upon the appellant himself by way of a Will. It is contendedthat merely because the appellant is in receipt of half of the property of hisgrandfather by way of a Will, cannot in any manner change the nature of theother half share, which devolved upon his father Surjit Singh. The appellantis entitled to a share in the property which devolved upon his father SurjitSingh as well. It is further contended that once the Will dated 02.06.2010was executed by Surjit Singh in favour of defendant No. 2--Palwinder PalSingh, the execution of the transfer deeds dated 02.07.2010 casts a gravesuspicion on the said instruments. It is, thus, prayed that this appeal beallowed, impugned judgment and decree dated 22.12.2014 passed by thelearned Civil Judge (Junior Division), Dasuya as well as judgment anddecree dated 01.08.2017 passed by the learned Additional District Judge,Hoshiarpur, be set aside and suit filed by the appellant be decreed throughout. 8. I have heard learned counsel for the appellant and have perusedthe file with his able assistance. 9. Relationship between the parties is not in dispute. Learnedcounsel for the appellant is unable to deny that the property of Gur AmarSingh i.e. grandfather of the plaintiff and defendant No. 2 and the father ofdefendant No. 1--Surjit Singh devolved upon the present appellant--plaintiff and his father Surjit Singh in his equal shares on the basis of aregistered will executed by Gur Amar Singh. Surjit Singh--plaintiff’s fatherexecuted Will dated 02.06.2010 bequeathing his half share in favour of hisother son i.e. defendant No. 2. Thereafter, two transfer deeds dated02.07.2010 were executed by Surjit Singh in respect to the same property infavour of defendant No. 2, his other son. Defendant No. 3 - daughter ofSurjit Singh was admittedly proceeded exparte and she has staked no claimto the property in question. 10. The appellant, in my considered opinion, has indeed failed toprove the ancestral nature of the suit property. Defendant No. 3 - daughter ofSurjit Singh was admittedly proceeded exparte and she has staked no claimto the property in question. 10. The appellant, in my considered opinion, has indeed failed toprove the ancestral nature of the suit property. It is a settled position thatuntil and unless the property in question is proved to be ancestral in natureon the basis of positive evidence led, the same cannot be presumed to be so.The presumption in fact is otherwise. Admittedly, no such evidence hasbeen led by the appellant. To the contrary, PW2 - Narinder Singh hasadmitted that the property of Gur Amar Singh devolved upon the appellant--plaintiff and his father - Surjit Singh on the basis of a registered Will of GurAmar Singh. Plaintiff--appellant himself, while deposing as PW3,categorically admitted devolution of the property of Gur Amar Singh (hisgrandfather) in equal shares upon him and his father - Surjit Singh.Defendant No. 3, the plaintiff’s other brother did not get any share in GurAmar Singh’s property. PW3 further revealed that he had sold landmeasuring 4 kilas in the year 1984 during the life time of Surjit Singh. He,however, obtained a power of attorney in favour of his daughter from hisfather Surjit Singh. On the basis of this power of attorney, sale deed wasexecuted in his favour as well. It is rightly held by both the learned courtsbelow that the plaintiff has failed to prove the suit property to be ancestralcoparcenary property. 11. Learned counsel for the appellant is unable to point out anyevidence on record to prove that transfer deed dated 02.07.2010 is a resultof any fraud or misrepresentation. Both the learned courts below, in thefactual matrix of the case, have rightly dismissed the suit filed by theappellant--plaintiff. 12. Both the learned courts below have rendered concurrentfindings of fact against the appellant on a wholesome and properappreciation of evidence on record which warrants no interference. Both the learned courts below, in thefactual matrix of the case, have rightly dismissed the suit filed by theappellant--plaintiff. 12. Both the learned courts below have rendered concurrentfindings of fact against the appellant on a wholesome and properappreciation of evidence on record which warrants no interference. In myconsidered opinion, no question of law much less a substantial question oflaw, is involved for consideration in this appeal neither is there any groundavailable to the appellant under Section 41 of the Punjab Courts Act, 1919.The Hon’ble Supreme Court in Gurnam Singh (D) by LRs versus Lehna Singh (D) by LRs, 2019 7 SCC 641 has observed as under:- “We remind the High Courts while deciding the second appealunder Section 100 of the CPC, it is not permissible for the HighCourt to reappreciate the evidence on record and interfere withthe findings recorded by the Courts below and/or the FirstAppellate Court and if the First Appellate Court has exercisedits discretion in a judicial manner, its decision cannot berecorded as suffering from an error either of law or ofprocedure requiring interference in Second Appeal.” 13. Learned counsel for the appellant is unable to point out anyillegality, infirmity or perversity in impugned judgment and decree dated22.12.2014 passed by the learned Civil Judge (Junior Division), Dasuya aswell as judgment and decree dated 01.08.2017 passed by the learnedAdditional District Judge, Hoshiarpur. which calls for any interference bythis Court in second appeal. 14. There is a delay of 83 days in re-filing of RSA No. 4575 of2018. Keeping in view the fact that the matter has been decided on merits,the question of delay in filing of this appeal has been rendered academic.Application is disposed of, accordingly. 15. No other argument has been addressed. 16. Accordingly, this appeal is dismissed with no order as to costs.