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2019 DIGILAW 2825 (PNJ)

Baljit Singh & Ors. v. Harbans Singh (since Deceased) Through Lrs.

2019-10-23

LISA GILL

body2019
JUDGMENT Lisa Gill, J. - Appellants are the unsuccessful plaintiffs with their suit for declaration being dismissed by the learned Civil Judge (Jr. Division), Ludhiana, vide impugned judgement and decree dated 15.03.2016 and their appeal challenging the same also being dismissed by the learned Additional District Judge, Ludhiana, vide impugned judgement and decree dated 25.09.2018. Aggrieved there from, present appeal has been filed. 2. Brief facts necessary for the adjudication of the case are that the plaintiffs filed a suit for declaration to the effect that they are owners in joint possession of the Hindu Undivided Family Ancestral Coparcenary property as detailed in the plaint. Further prayer for declaration to the effect that the registered transfer deeds dated 19.01.2009 and 18.12.2009 executed by defendant no.l-Joginder Singh in favour of defendant no.2-Harbans Singh, are illegal, null, void, forged and fabricated documents thus not binding on the rights of the plaintiffs. It is pleaded that the property in question was ancestral, coparcenary, Hindi Undivided Family property in the hands of Joginder Singh-defendant no.l, as this property was purchased by defendant no.l-Joginder Singh from the joint funds of the Hindu Undivided Family. Earlier, Phuman Singh, grandfather of plaintiffs and defendant no.2 i.e., father of defendant no.l, was pleaded to be the karta of the joint Hindu Family and managing the affairs of the said property. Mother of the plaintiffs, defendant no.2 and wife of defendant no.l, is stated to have passed away 5-6 years prior to the filing of the suit. Defendant no.l-Joginder Singh, assumed position of a Karta of the Joint Hindu Property after the death of Phuman Singh and was managing the same. Plaintiffs claimed to have a right in the property being coparceners. Defendant no.l-Joginder Singh, is stated to be 80 years old and Harbans Singh-defendant no.2 aged 54 years was pleaded to be completely bed ridden and under the influence of intoxicants. Joginder Singh-defendant no.l, is further stated to be under the influence of the family of defendant no.2. Plaintiff no.l, claimed to have visited the Halka Patwari of village Khera Bet on 17.06.2010 to obtain a certified copy of the jamabandi of their land and then it came to light that mutation nos.4855 and 4856 were sanctioned in favour of defendant no.2 on the basis of the transfer deeds as mentioned above. Plaintiff no.l, claimed to have visited the Halka Patwari of village Khera Bet on 17.06.2010 to obtain a certified copy of the jamabandi of their land and then it came to light that mutation nos.4855 and 4856 were sanctioned in favour of defendant no.2 on the basis of the transfer deeds as mentioned above. The said transfer deeds are claimed to be forged and fabricated documents having no effect on the rights of the plaintiffs. Defendant no.l, it is claimed has no right to execute the said transfer deeds and the same have no legal sanctity. Moreover, defendant no.l-Joginder Singh is stated to be mentally and physically unfitas he even remained unconscious for a week. The transactions are stated to be sham transactions. When the defendants refused to admit the claim of the plaintiffs, the suit was filed. 3. Suit was contested by the defendants. Various preliminary objections were taken. On merits, the contentions were denied. It is stated that the plaintiffs and defendants no.l and 2 were originally the residents of village Sunet, Tehsil and District Ludhiana. The property in village Sunet was acquired for setting up Punjab Agriculture University, Ludhiana. After acquisition of the land, defendant no.l gave an amount of Rs. 70,000/- each to Baljit Singh-plaintiff no.l, Baljinder Singh-plaintiff no.2 and Harbans Singh-defendant no.2. In addition thereto, Baljit Singh and Baljinder Singh were given a house in village Sunet, Tehsil and District Ludhiana while defendants no.l and 2 settled at Village Khaira Bet. Agriculture land at Village Khaira Bet was purchased in the name of defendant no.l out of the sum of Rs. 70,000/- given to defendant no.2. Sufficient amount, it is stated was spent on the marriage of plaintiff no.3. Plaintiffs no.l and 2 are claimed to be living separately from defendant no.l for the last more than 30 years. They are having their separate residential houses at a distance of about 12 kms and plaintiff no.3 was also residing at her matrimonial home. Other averments in the plaint, were denied and dismissal of the suit was prayed for. 4. Replication was filed. From the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the land in dispute is fully described in the head note of the plaint is undivided joint and ancestral property? OPP 2. Other averments in the plaint, were denied and dismissal of the suit was prayed for. 4. Replication was filed. From the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the land in dispute is fully described in the head note of the plaint is undivided joint and ancestral property? OPP 2. Whether the sale deed effected by defendant no.l in favour of defendant no.2 and others as detailed in the head note of the plaint are illegal, void, without consideration and legal necessity? OPP 3. Whether the plaintiff is entitled to injunction prayed for? OPP 4. Whether the suit is not maintainable as alleged by defendant? OPD 5. Whether the land in dispute was acquired for setting off Punjab Agriculture University? OPD 6. Whether the defendant no.l has transferred the property in favour of defendant no.2, was actually purchased by defendant no. 1? OPD 7. Whether the transaction effected by defendant no.l was without the legal necessity? OPD 8. Whether the plaintiff and defendant no.l and 2 living separately, if so its effect? OPD 9. Whether the suit has been filed by plaintiffs maliciously to harass the defendant? OPD 10. Whether the plaintiff have not come to the court with clean hands? OPD 11. Relief. 5. Both the parties led evidence in support of their respective claims/stands. 6. Learned trial Court on considering the evidence on record, concluded that the plaintiffs failed to prove that the suit property was Joint Hindu Ancestral Coparcenary Property in the hands of Joginder Singh. Transfer of the property in favour of defendant no.l, was held to be valid. Suit was accordingly dismissed by the learned trial Court. 7. Appeal filed by the present appellants was dismissed by the learned Additional District Judge, Ludhiana, vide impugned judgement and decree dated 25.09.2018.. 8. Aggrieved there from, present appeal has been filed by the appellants-plaintiffs. 9. Learned counsel for the appellants vehemently argues that both the learned Courts below have grossly erred in law and on facts in dismissing the suit filed by the plaintiffs. Suit property is duly proved to be the ancestral Joint Hindu Family Coparcenary property in the hands of Joginder Singh. It has been wrongly held by the learned Courts below that the property was inherited by Joginder Singh on the basis of a will from Phuman Singh. Suit property is duly proved to be the ancestral Joint Hindu Family Coparcenary property in the hands of Joginder Singh. It has been wrongly held by the learned Courts below that the property was inherited by Joginder Singh on the basis of a will from Phuman Singh. The property in question was transferred in favour of defendant no.2 without any legal necessity or any consideration. Therefore, both the learned Courts below have returned findings which are perverse and deserve to be set aside. It is thus prayed that the present appeal be allowed. Consequently, suit filed by the plaintiffs be decreed throughout. 10. I have heard learned counsel for the appellants and have gone through the file with his assistance. 11. At the very outset, it is to be noted that relationship between the parties is admitted. Defendant no.l-Joginder Singh (since deceased) is father of the plaintiffs and defendant no.2. Plaintiffs have laid the foundation of their case on the ground that the property in question is the ancestral joint hindu family coparcenary property in the hands of defendant no.l-Joginder Singh. Needless to say, it is for the plaintiffs to prove their case by leading clear and cogent evidence to this effect. It is a settled position that the property until and unless proved to be ancestral joint hindu family property, is to be treated as the self acquired property of a person. 12. Plaintiff-Baljit Singh, while deposing as PW-1 has admitted in his cross-examination that Phuman Singh (father of Joginder Singh) had four sons and three daughters. It is further stated that Phuman Singh had executed a will in favour of his sons and Joginder Singh had inherited the property on the basis of the will executed by Phuman Singh. It is further admitted by the plaintiff-Baljit Singh that Bhan Singh, an uncle of Joginder Singh also executed a will in favour of Joginder Singh and his brothers. Baljit Singh has categorically admitted that even Phuman Singh inherited the land from his father on the basis of a will. Clearly, the suit property in the hands of Joginder Singh cannot by any stretch of imagination be concluded to be the ancestral joint hindu coparcenary property. 13. Argument raised on behalf of the appellants that the property at village Khaira Bet was bought out of the funds of Joint Hindu Family Property, is also untenable, hence rejected. Clearly, the suit property in the hands of Joginder Singh cannot by any stretch of imagination be concluded to be the ancestral joint hindu coparcenary property. 13. Argument raised on behalf of the appellants that the property at village Khaira Bet was bought out of the funds of Joint Hindu Family Property, is also untenable, hence rejected. There is indeed no evidence on record to substantiate the plea of the property being ancestral joint hindu family property. 14. Learned counsel for the appellants is also unable to point out any evidence on record to indicate that Joginder Singh was an ailing, infirm person, who was incapable of executing the transfer deeds dated 19.01.2009 and 18.12.2009. The said transfer deeds are registered documents which have been duly proved on the basis of the evidence led by the defendants. Reference to a stray averment by DW-1 to the extent that the property in the hands of Joginder Singh is the ancestral property, is clearly not sufficient to prove the nature of the suit property to be ancestral. Evidence of DW-1 has to be read as a whole and a correct finding in this respect has been returned by the learned trial Court. Both the learned Courts below, have rightly dismissed the suit filed by the appellants-plaintiffs to the extent as mentioned above after proper appreciation of the evidence on record. 15. Learned counsel for the appellants, is unable to point out any question of law much less a substantial question of law which may be involved for consideration in this regular second appeal. Both the learned Courts below, after proper appreciation and consideration of the evidence on record have returned concurrent findings of fact vide impugned judgements, which call for no interference. 16. No other argument has been raised. 17. Keeping in view the facts and circumstances as discussed above, impugned judgments and decrees dated 15.03.2016 and 25.09.2018 passed by the learned Civil Judge (Jr. Division) Ludhiana and learned Additional District Judge, Ludhiana, respectively, are upheld. 18. Present appeal is, consequently, dismissed with no order as to cost.