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2024 DIGILAW 1336 (PNJ)

Satish Kumar v. Baldev Singh

2024-11-14

DEEPAK GUPTA

body2024
JUDGMENT : Deepak Gupta, J. This appeal is against the concurrent findings of the courts below. In order to avoid confusion, parties shall be referred as per their status before the trial court. 2. Plaintiff No.1 - Baldev Singh (respondent N: 1 herein — since deceased & so, represented by his LRs) is the son of initially impleaded sole defendant Harkesh. Plaintiffs No.2 & 3 i.e. Ashok Kumar and Netrar Pal (respondent N: 2 & 3 herein) are the sons of Baldev Singh i.e. grandsons of the said defendant-Harkesh. Present appellants are pendente lite vendee of the suit property from defendant Harkesh. They were substituted as such in place of defendant before first appellate court. 3.1. As per plaintiffs, parties formed a joint Hindu family, of which the defendant was the Karta. Land measuring 61 kanal 16 marla [2/3 share of the total land] situated in Village Daula, Tehsil and District Gurgaon, detailed in para No.1 of the plaint, is the ancestral property of plaintiffs; whereas, defendant is recorded as owner to the extent of 1/3 share i.e. 31 kanal 6 marla [‘suit land’] in the total land as Karta of the family and so, the same is inalienable.. Plaintiffs alleged that defendant wanted to sell his share without any notice, knowledge or consent of the plaintiffs and without any legal necessary or consideration. Defendant also started interfering in the possession of the plaintiffs over the suit land. With these averments, suit [civil suit N: 950 of 1983] was brought by the plaintiffs on 28.11.1983 seeking a decree of permanent injunction to restrain the defendant from interfering in their possession over the suit land and also from alienating the land to the extent of 1/3rd share in any manner, whatsoever. 3.2. Defendant-Harkesh, though in his initial written statement denied the ancestral nature of the suit property, but in the amended written statement, admitted the ancestral nature of the suit property. He, however, denied that parties to the suit formed joint Hindu family or that he was Karta of any such family. According to him, he is the full-fledged owner of his 1/3rd share in the total land and that he is in cultivating possession thereof without any interference from any side. Controverting other averments in the plaint, he prayed for dismissal of the suit. 3.3. Following issues were framed by the trial Court on 20.11.1984: - “1. According to him, he is the full-fledged owner of his 1/3rd share in the total land and that he is in cultivating possession thereof without any interference from any side. Controverting other averments in the plaint, he prayed for dismissal of the suit. 3.3. Following issues were framed by the trial Court on 20.11.1984: - “1. Whether the plaintiff and defendant are members of the joint Hindu family? OPP 2. Whether the suit land is ancestral property of defendant qua plaintiffs in the hands of defendant? OPP 3. Whether the property in dispute is joint Hindu family co-parcenary ancestral property. If so to what effect? OPP 4. Whether the plaintiffs are in exclusive possession of suit land, as alleged? OPP 5. Whether the plaintiff No.1, 2 and 3 are owner to the extent of 2/3rd share? OPP 6. Whether the suit is not maintainable? OPD 7. Whether the plaintiffs have no locus standi to file the suit? OPD 8. Whether the plaintiffs is estopped from filing the present suit by his own act, conduct and acquiescence? OPD 9. Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD 10. Whether the defendant is owner to the extent of 1/3 share in the suit land, if so, to what effect? OPD. 11. Relief. 3.4. An application moved by the plaintiffs for amendment of the plaint was allowed in September, 1986. In the amended plaint, it was pleaded by the plaintiffs that by virtue of family settlement and arrangement, plaintiffs N: 2 & 3 had become owners in possession of suit property i.e., 1/3 share of the defendant. They also prayed for decree of declaration to that effect. 3.5. Learned trial Court of Ld. Additional Senior Sub Judge, Gurgaon vide its order dated 05.01.1987 dismissed the suit by treating issue No.6 as a preliminary issue and by holding that suit was not maintainable. To arrive at such a finding, it was observed that as per the own case of the plaintiffs, suit property was ancestral coparcenary property and as such, the Karta could not be restrained from alienating the same, as has been held by this Court in Jujhar Singh Vs. Giani Talok Singh, 1986 PLJ 346 . 3.6. In the appeal [CA N: 7 of 1987] filed by the defendant against the aforesaid order and decree dated 05.01.1987, it was observed by learned Addl. Giani Talok Singh, 1986 PLJ 346 . 3.6. In the appeal [CA N: 7 of 1987] filed by the defendant against the aforesaid order and decree dated 05.01.1987, it was observed by learned Addl. District Judge, Gurgaon that in the amended plaint, plaintiffs had specifically pleaded about a family settlement with the defendant, by virtue of which it was claimed that plaintiff Nos.2 & 3 had become owner of 1/3 share of the defendant in the suit property and they had also amended their prayer accordingly. As such, the suit should not have been dismissed on the ground of maintainability only. Consequently, the Appellate Court vide its order dated 19.05.1987 set aside the order and decree dated 05.01.1987 of the trial court and remanded the case back to the trial Court under Order 41 Rule 23 CPC for decision of the suit afresh in accordance with law. 3.7. Thereafter, following additional issues was framed by the trial Court on 10.08.1987. “10 A. Whether the plaintiffs Nos.2 and 3 became owners to the extent of 1/3rd share of the defendant under the family settlement/arrangement?” 3.8. Plaintiffs concluded their evidence by examining as many as 05 witnesses. However, defendant failed to produce any evidence and as such, his evidence was closed by the Court. 3.9. Taking issues Nos. 1, 2 and 3 together, trial Court held that parties to the suit formed a joint Hindu family; that suit property was ancestral in the nature in the hand of defendant qua the plaintiffs and that the same was joint Hindu family coparcenary property, wherein all the coparceners had acquired interest by birth. As such, these issues were decided in favour of the plaintiffs. Issues Nos.5, 10 and 10A were taken up together and it was held that defendant had relinquished his 1/3 share in the total property in favour of plaintiff Nos.2 and 3 by way of the family settlement and as such, plaintiff No.1 is now the owner to the extent of 1/3 share in the total property; whereas, plaintiffs Nos. 2 and 3 are the owners to the extent of the remaining 2/3 share. Issue No.4 was decided against the defendant by holding that plaintiffs are in cultivating possession of the entire property. The findings on issue Nos.6 and 7 were also returned in favour of the plaintiffs & against the defendant. 2 and 3 are the owners to the extent of the remaining 2/3 share. Issue No.4 was decided against the defendant by holding that plaintiffs are in cultivating possession of the entire property. The findings on issue Nos.6 and 7 were also returned in favour of the plaintiffs & against the defendant. Issue Nos.8 and 9 were disposed of as not pressed for. Consequent to all these findings, suit was decreed on 03.09.1991 by declaring the plaintiff No.1 as owner to the extent of 1/3 share and plaintiff Nos.2 and 3 as owner to the extent of 2/3 share in joint possession of the entire joint land. Defendant was restrained from interfering in the possession of the plaintiffs over the suit land or from alienating the land to the extent of 1/3 share. 4.1. Defendant — Harkesh approached the Appellate Court by filing appeal [CA N: 83 of 1991] against the aforesaid judgment & decree dated 03.09.1991. During pendency of that appeal, the sole appellant-defendant — Harkesh expired on 25.07.1994. 4.2. An application was moved by the respondents/plaintiffs under Order 22 Rule 3 (2) CPC to dismiss the appeal having abated. On the other hand, another application under Order 22 Rule 10 CPC and Order 1 Rule 10 CPC was moved by Satish Kumar and Sumat s/o Jagdish Parshad (present appellants) to implead/substitute them in place of the appellant/defendant. It was pleaded by them that they had purchased the suit land from defendant — Harkesh by way of sale deed dated 06.06.1988 registered on 07.06.1988 for consideration of Rs.90,000/- and as such, defendant was left with no right, title or interest in the suit property. It was alleged that plaintiffs being the family members of the defendant, this fact was concealed by vendor — Harkesh from the Court and that with an intention to cheat the applicants, said defendant had not even appeared as his own witness in the witness box and in collusion with the plaintiffs, lost the litigation in favour of his son and grandsons. They prayed to substitute them in place of the appellant - defendant. Vide order dated 06.03.1995, learned Addl. District Judge, Gurgaon dismissed the application of the respondents/plaintiffs so as to reject the appeal having abated. By way of the same order, the application under Order 22 Rule 10 CPC to substitute the applicants as appellants was allowed. 4.3. They prayed to substitute them in place of the appellant - defendant. Vide order dated 06.03.1995, learned Addl. District Judge, Gurgaon dismissed the application of the respondents/plaintiffs so as to reject the appeal having abated. By way of the same order, the application under Order 22 Rule 10 CPC to substitute the applicants as appellants was allowed. 4.3. The substituted appellants, i.e. present appellants then moved an application for amendment of the written statement. That application was partly allowed by learned Addl. District Judge, Gurgaon vide order dated 13.01.1997 by permitting them to amend the written statement so as to add the plea about the maintainability of the suit in view of a pre-emption suit previously filed by the plaintiffs. However, prayer for amendment so as to add the plea that the appellants are bonafide purchasers, was declined. 4.4. Consequent to the filing of the amended written statement accordingly and the consequent amended replication, issues Nos.6 and 8 about maintainability of the suit and estoppel were re-framed, which are as under:- “6. Whether the suit is not maintainable in view of the fact that the plaintiffs filed a suit for pre-emption admitting the correctness of the sale as alleged? OPD. 8. Whether the plaintiffs are estopped from filing the suit because they admitted the correctness of the sale and filed the suit for pre-emption as alleged? OPD.” 4.5. Vide order dated 17.04.1997, learned Addl. District Judge, Gurgaon, referred the case to the trial Court under Order 41 Rule 25 CPC to receive the evidence of the parties and record fresh findings on the aforesaid issues and forward the same to the Court. 5. Learned trial Court vide its order 30.09.1997 returned the findings on both the aforesaid amended issue Nos.6 and 8 in favour of the defendant (substituted appellants). It was held that in view of the legal position explained by Full Bench of this Court in Amarchand v. Harji, 1971 PLR 821 , the facts of which were applicable to this case, the suit of the plaintiffs was not maintainable, as in the suit for possession by way of pre- emption, plaintiffs had admitted the correctness of the sale deed executed by Harkesh, the father of plaintiff Baldev and grandfather of Ashok & Netter Pal etc. in favour of the appellants. in favour of the appellants. It was also held that by admitting the correctness of the sale deed in suit for possession by way of pre-emption, the plaintiffs were estopped to deny the correctness of the same and as such, the issue No.8 was also decided in favour of the defendant and against the plaintiffs. 6. After receiving the aforesaid report dated 30.09.1997 from the trial Court on the amended issue Nos.6 and 8, learned First Appellate Court heard the appeal. Dismissing the appeal, it was observed by the First Appellate Court that plaintiffs had not challenged the sale deed executed by Harkesh in favour of the appellants, which otherwise was executed during pendency of the suit, therefore, the authority of Amarchand’s case (supra) was not applicable. It was also noticed that as pre- emption suit had been filed on 07.06.1989, whereas the present suit had been filed on 28.11.1983, therefore, said sale in favour of the plaintiffs was hit by the principle of /is pendens and so, it could not be said that the suit was not maintainable because of the filing of the pre-emption suit subsequently. As such, findings of the trial Court on re-framed issue Nos.6 and 8 were reversed. Appellate court upheld the finding returned by trial court that by virtue of family settlement, plaintiffs had become owners in possession of the suit land previously held by the defendant Harkesh. By also upholding the findings of trial Court on the other issues, the Appellate found no merit in the appeal. As such, sustaining the judgment & decree dated 03.09.1991 of the trial Court, the appeal was dismissed on 04.02.1998. 7. Against the aforesaid judgment as passed by the First Appellate Court, the appellants, i.e. newly substituted defendants have approached this Court by way of the present regular second appeal. Contentions raised by appellants: 8.1. Opening arguments on behalf of the appellants, it is argued by learned Sr. Advocate that burden to prove the ancestral nature of the suit property was upon the respondents-plaintiffs, but they have failed to bring in evidence to prove the same. It is argued that only the property, inherited by a male Hindu from his father, father’s father or father’s father’s father, which can be regarded as ancestral property. Advocate that burden to prove the ancestral nature of the suit property was upon the respondents-plaintiffs, but they have failed to bring in evidence to prove the same. It is argued that only the property, inherited by a male Hindu from his father, father’s father or father’s father’s father, which can be regarded as ancestral property. Drawing attention towards revenue excerpt (Ex.PW5/1), it is argued that the plaintiffs failed to prove that Harkesh inherited the land from his 3 degrees of ancestors. The said revenue excerpt would show that Harkesh had inherited the land from his father Aarimal, who had inherited from his father Ram Singh and as such, the land qua Harkesh was not ancestral in nature. Further attention is drawn towards the fact that after the death of Aarimal, the land was inherited by his four sons, i.e. Lakhmi Chand, Prithi, Harkesh and Raghuraj. On the death of Raghuraj, his share was inherited by his three brothers, i.e. Lakhmi Chand, Pirthi and Harkesh. Lakhmi Chand had given his share to Baldev, i.e. plaintiff No.1 through a Will; whereas Prithi, another real brother of Harkesh had given his share to plaintiff Nos.2 and 3, i.e. sons of Baldev through a Civil Court decree in 1983 and so, it does not lie in the mouth of plaintiffs to claim that suit property was ancestral. Learned Sr. counsel argues that when property devolves otherwise than by decent to heirs, its loses its character as ancestral property. Even otherwise, once the ancestral and non-ancestral land is mixed up in hotch-potch, the whole of the land is to be regarded as non-ancestral in nature. Learned Sr. counsel refers to Mara and others Vs. Mst. Nikko alias Punjab Kaur, 1964 AIR Supreme Court 1821. It is argued that once plaintiffs failed to prove that they derived the share of land from the source other than natural decent, the Courts below erred in holding the suit land as ancestral in nature. 8.2. Coming to the plea of the plaintiffs regarding the alleged family settlement, learned Sr. Counsel for the appellants has drawn attention towards the plaint initially filed by the plaintiffs, wherein there is absolutely no reference of any family settlement. 8.2. Coming to the plea of the plaintiffs regarding the alleged family settlement, learned Sr. Counsel for the appellants has drawn attention towards the plaint initially filed by the plaintiffs, wherein there is absolutely no reference of any family settlement. Even in the amended written statement, the plaintiffs only pleaded that plaintiff Nos.2 and 3 had become owners of the 1/3 share of the defendant in the suit property by way of a family settlement, without disclosing as to when that family settlement had taken place and whether it was oral or written. It is pointed out that the Courts below accepted the theory of family settlement on the basis of oral evidence and the fact that defendant — Harkesh had not appeared as a witness. The Court failed to notice the fact that said Harkesh had intentionally not appeared, as he had already sold the suit property to the appellants. It is urged that the Lower Appellate Court is the final Court of fact and it failed to notice that apart from the oral plea of family settlement in the amended plaint, there was no evidence to prove the alleged family settlement, the onus of which was upon the plaintiffs. Mere absence of the defendant from the witness box could not prove the case of the plaintiffs regarding the alleged family settlement, which was not even reflected in the revenue record, in which, Harkesh continued to be shown as owner of his 1/3 share. 8.3. Still further, it is argued by learned Sr. counsel for the appellants that by filing a suit for pre-emption so as to pre-empt the sale deed dated 06.06.1988 registered on 07.06.1988 in favour of the appellants for consideration of Rs.90,000/- as executed by Harkesh, the plaintiffs had admitted the sale as well as the sale consideration as mentioned therein. As such, they were estopped from filing the present suit, which was not maintainable as was rightly held by the trial Court in its report of 30.09.1997 on amended issue Nos.6 and 8 and that the Appellate Court committed error in upsetting these findings on amended issue Nos.6 and 8 and ignored the legal position as explained by the Full Bench of this Court in Amarchand’s case (supra). 8.4. Learned Sr. 8.4. Learned Sr. counsel for the appellants has further drawn attention towards the fact that besides the fact that the suit for pre-emption by plaintiffs was dismissed as withdrawn, plaintiffs had even filed a separate suit challenging the sale deed dated 06.06.1988/07.06.1988 on the ground that it was executed by Harkesh without any legal necessity or consideration. However, that suit was also dismissed as withdrawn. One more suit was filed on 15.02.1984 by the plaintiffs seeking declaration on the basis of alleged family settlement but the same was also dismissed as withdrawn on 09.01.1985. Learned Sr. counsel contends that in view of this overwhelming evidence, both the Courts below committed grave error in decreeing the suit. Contentions raised by respondents - plaintiffs: 9.1. Refuting the aforesaid contentions, it is argued by learned counsel for the respondents-plaintiffs that findings of the Courts below regarding the ancestral nature of the suit property is concurrent and based upon the revenue excerpt (Ex.PW5/1). Although, it is conceded that as per the revenue excerpt, Harkesh succeeded the property from the two degrees of ancestors but learned counsel has drawn attention towards the relevant para of Mulla’s Hindu Law so as to contend that any property, which is inherited either from father or grandfather or father’s father’s father is ancestral in nature. 9.2. It is further argued by learned counsel that the appellants purchased the suit property from Harkesh during pendency of the suit and as such, their sale is hit by the principle of lis pendens. 9.3. Learned counsel also contends that the finding of Courts below that plaintiff Nos.2 and 3 had become owner of 1/3 share of defendant — Harkesh in the suit property by way of family settlement, is also a concurrent finding of fact, based upon evidence on record, as the witnesses examined by the plaintiffs duly proved the same and which is also reflected in the revenue record. Besides, as defendant Harkesh did not enter the witness box to deny the family settlement, the court was right to draw adverse inference against him and so, in all these circumstances, there is no scope to interfere in the finding. 9.4. Besides, as defendant Harkesh did not enter the witness box to deny the family settlement, the court was right to draw adverse inference against him and so, in all these circumstances, there is no scope to interfere in the finding. 9.4. It is also argued that as present suit was decreed in favour of the plaintiffs granting them desired relief, so, the suit for pre-emption and the other suits for declaration were dismissed as withdrawn and therefore, appellants cannot draw any advantage of that litigation. 9.5. With these submissions, learned counsel for the respondents — plaintiffs prayed for dismissal of the appeal. 10. This Court has considered submissions of both the sides at depth and has appraised the entire record carefully with the able assistance provided by the counsels from both sides. Analysis by this Court: Whether suit property was ancestral - 11. Since plaintiffs N: 2 & 3 claimed to have become owner of suit property recorded in the name of their grandfather — defendant Harkesh on the basis of family settlement, so the first question to be determined is whether the suit property, i.e. 1/3 share in the total property recorded in the name of defendant — Harkesh was ancestral in his hands qua these plaintiffs. As per revenue excerpt (Ex.PW5/1), Ram Singh, the common ancestor of the parties (as initially impleaded in the suit) is recorded as the earliest owner of the total land. He was succeeded by his sons Hameera and Aarimal, as per Jamabandi for the year 1877, which entries continued till 1911. On the death of Hameera, his share appears to have been mutated in the name of Aarimal in 1918 and this way, Aarimal became absolute owner. On the death of Aarimal in 1923, his four sons, namely Lakhmi Chand, Prithi, Harkesh and Raghuraj came to be recorded as owners of the total land as per entries in the Jamabandi from the years 1926 onwards till 1935. On the death of Raghuraj in 1935, his share is inherited by his three brothers, i.e. Lakhmi Chand, Prithi and Harkesh. From 1938-39 till 1975-76, these three brothers, i.e. Lakhmi Chand, Prithi and Harkesh are recorded to be owners of the total land to the extent of 1/3 share each. 12. On the death of Raghuraj in 1935, his share is inherited by his three brothers, i.e. Lakhmi Chand, Prithi and Harkesh. From 1938-39 till 1975-76, these three brothers, i.e. Lakhmi Chand, Prithi and Harkesh are recorded to be owners of the total land to the extent of 1/3 share each. 12. As per plaintiffs, Lakhmi Chand executed a Will in the year 1979 in favour of Baldev regarding his 1/3 share in the property; whereas Prithi suffered decree regarding his 1/3 share in favour of plaintiff Nos.2 and 3, i.e. sons of Baldev. This way, Harkesh remained to be recorded as owner to the extent of 1/3 share in the suit property. As the entries in the Jamabandi for the year 1980-81 would reveal, the entire property measuring 93 kanals 16 marlas is shown to be joint property. It is not the case of the either of the parties that it has ever been partitioned at any point of time. 13. There can be no dispute that 1/3 share of the total land, which Baldev got by way of a Will from his paternal uncle Lakhmi Chand, became his personal property. Similarly, 1/3 share of the total property, regarding which Prithi suffered decree in favour of plaintiff Nos.2 and 3, became their personal property in their hands. It means that out of the total property, 2/3 share was non-ancestral in the hands of the plaintiffs; whereas, the plaintiffs claim that the remaining 1/3 share in the hands of Harkesh was ancestral in his hands. It is not specified as to which particular 1/3 share of total land was ancestral in the hands of Harkesh, as the total property was never partitioned. 14. Here itself, it may also be noted that Harkesh inherited ¼ share in the property from his father Aarimal in 1923, when succession of Aarimal opened as per old Hindu Law i.e., prior to coming into force of Hindu Succession Act, 1956. Harkesh inherited another 1/12 (1/4 x 1/3) share on the death of his brother Raghuraj in 1935 to make his total share as 1/3. The 1/12 share so inherited by Harkesh from his collateral/brother cannot be regarded as ancestral. This way, total 1/3 share in the hands of Harkesh became a hotch-potch of ancestral and non-ancestral property. 15. Harkesh inherited another 1/12 (1/4 x 1/3) share on the death of his brother Raghuraj in 1935 to make his total share as 1/3. The 1/12 share so inherited by Harkesh from his collateral/brother cannot be regarded as ancestral. This way, total 1/3 share in the hands of Harkesh became a hotch-potch of ancestral and non-ancestral property. 15. Partition having never taken place amongst three brothers, i.e. Lakhmi Chand, Prithi and Harkesh; and later on amongst three plaintiffs & Harkesh, plaintiffs got the shares of Lakhmi Chand and Prithi, it means that the total property became a hotch-potch of ancestral and non-ancestral, because it cannot be ascertained as to which part of 1/4 share in the total property (as inherited by Harkesh from his father Aarimal) was ancestral in the hands of Harkesh and which 1/12 share in his hand & 2/3 share in the hands of plaintiffs was non-ancestral, as the entire property became a hotch- potch of ancestral and non-ancestral property in the hands of plaintiffs & defendant Harkesh. 16. In Mara and others Vs. Mst. Nikko alias Punjab Kaur and another, 1964 AIR Supreme Court 1821, it has been held by Hon’ble Supreme Court as under: - “Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and non ancestral portions cannot be separated they must be regarded as _non-ancestral, unless it is shown which are ancestral and which are not. This was laid down by the Privy Council in Avtar Singh v. Thakar Singh, 35 Ind. App. 206 (PC). It was held by Mr. Justice Kapur (as he then was) in Indar Singh v. Gulzara Singh, AIR 1951 Punjab 345 basing himself upon Saif-ul-Rahman v. Mohammand Ali Khan, ILR 9 Lahore 95 and Jagtar Singh v. Raghbir Singh, ILR 13 Lahore 165 that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent........ 17. Taking similar view, this Court in Inder Singh (dead) through LRs Vs. Channo and others, 2004(3) PLR 170 by relying upon Division Bench judgment in Labh Singh Vs. Mt. Jasso, AIR 1933 Lahore 180, held as under: “Mr. 17. Taking similar view, this Court in Inder Singh (dead) through LRs Vs. Channo and others, 2004(3) PLR 170 by relying upon Division Bench judgment in Labh Singh Vs. Mt. Jasso, AIR 1933 Lahore 180, held as under: “Mr. R.S. Mittal, learned Senior Advocate, as a last resort contends that half of the property in the hand of Jeeta, in any case, has to be held as ancestral as, at least, half property of the total land owned by him came to him by way of succession from his father Data Ram and, therefore, the gift to the extent of 1/4 share of the property, which will be ancestral property, in any case, would be bad. The argument appears to be impressive in the first blush but when examined in detail, the same is found to have no merit whatsoever. A reading of the gift deed dated 8.5.1962, Ex.PW17/A would show that Jeeta became owner of 59 Bighas and 7 Biswas of land, be it by way of succession either from his father or Ganga Ram through his widow and out of the entire holding, of which he became owner, he did not gift half share to his son and half to his daughter-in-law. He in fact made a gift only to the extent of 36 Bighas 7 Biswas out of total holding measuring 59 Bighas and 7 Biswas and retained to himself 23 Bighas. There is no evidence brought on records to show as to whether he kept to himself 23 Bighas of land which was inherited by him from Ganga Ram or a part of land that he inherited from Data Ram. The joint property measuring 36 Bighas 7 Biswas, that, thus, came to be gifted to his son and daughter-in-law, was both ancestral and non ancestral. Which part out of 36 Bighas 7 Biswas was ancestral and which was non-ancestral, there is no proof of the said fact. In other words, it can well be said that ancestral and non-ancestral part of land has been mixed up in such a way that it is difficult to find out as to which part of land is ancestral or non-ancestral. In the facts and circumstances, as referred to above, it is be held that the entire land is _non-ancestral. Reference in this connection may be made to Division Bench judgment in Labh Singh and Anr. In the facts and circumstances, as referred to above, it is be held that the entire land is _non-ancestral. Reference in this connection may be made to Division Bench judgment in Labh Singh and Anr. v. Smt. Jasso and Anr., A.1.R. 1933 Lahore 180.” 18. Thus, legal position, which can be culled out is that where lands are so mixed up that the ancestral and non ancestral portions cannot be separated, they must be regarded as non-ancestral, unless it is shown which are ancestral and which are not. 19. Applying the above legal position to the factual matrix of this case, it is concluded that suit property in the hands of Harkesh was not ancestral property and rather, it was non-ancestral in his hands. 20. Once it is found that suit property in the hands of Harkesh [1/3 share in the total land] was non-ancestral, there can be no hesitation to conclude that there could not be any transfer of title of the said property in favour of plaintiffs N: 2 & 3 by virtue of alleged family settlement/ arrangement, except by way of registration in accordance with law. 21. Assuming for the sake of arguments that property in the hands of Harkesh was ancestral as is the pleaded case of the plaintiffs, the question is whether they are able to prove alleged family settlement, whereby defendant — Harkesh had allegedly transferred his 1/3 share to plaintiff Nos.2 and 3. *Whether Family Settlement proved — 22. In this regard, it is necessary to first refer to the pleadings of the plaintiffs. In the initial plaint filed in November, 1983, there is absolutely no reference of any family settlement. It is only in the amended plaint filed in September, 1986 that plaintiffs for the first time claimed that plaintiff Nos.2 and 3 got the property from defendant — Harkesh in a family settlement, but here also, no date, month or year has been mentioned as to when that family settlement took place and in whose presence. Unamended pleadings cannot be ignored, as in Lakhpat Singh and others Versus Smt. Nirmal and others, 2019 (2) RCR (Civil) 18, this Court examined the question as to whether on allowing the application for amendment of the pleadings, courts can overlook the unamended pleading part of the record. Unamended pleadings cannot be ignored, as in Lakhpat Singh and others Versus Smt. Nirmal and others, 2019 (2) RCR (Civil) 18, this Court examined the question as to whether on allowing the application for amendment of the pleadings, courts can overlook the unamended pleading part of the record. This Court answered the question as under: - “It is well settled that merely because the amendment in the pleadings have been permitted, the original pleadings does not loose its significance. The original pleadings and the statements given in evidence before the amendment of the pleadings has to be looked into and considered by the courts while deciding the case. Admission made in the unamended written statement can be used by the court unless it has been successfully explained to be erroneous in the subsequent pleadings and evidence. In the present case, the amendment to the written statement was allowed subject to evidence of coercion or misrepresentation. However, courts subsequently overlooked the order earlier passed by the court while allowing the amendment and proceeded to decide the case only on the basis of amended pleadings, which was clearly erroneous.” 23. Considering that there is not even a whisper of any family settlement in the original plaint and when the plaint is amended after about three years, there is no detail as to the date, month or year, when any such family settlement took place, it appears that said story of family settlement is a mere concoction. 24. In order to prove the family settlement as claimed, plaintiffs relied upon the oral evidence, which is contradictory. One of the plaintiffs Baldev examined as PW1 says that the family settlement was oral & had taken place in 1980; PW2 Gajraj, examined in December 1987 says that family settlement had taken place 8-10 years ago; whereas the other witness — PW4 Kanwal Pal says that it had taken place in 1978. The suit had been filed in 1983. In case, plaintiff Nos.2 and 3 had become owners of 1/3 share of the property of defendant — Harkesh by way of a family settlement, either in 1978 or 1980, plaintiffs must have referred in the plaint. The mere fact that there was no reference of any such family settlement in the plaint filed in 1983, in itself is sufficient to draw an inference that the story of family settlement is mere concoction. 25. The mere fact that there was no reference of any such family settlement in the plaint filed in 1983, in itself is sufficient to draw an inference that the story of family settlement is mere concoction. 25. Apart from above, there is no supporting evidence to show any family settlement between the parties. It is admitted case of the plaintiffs that no writing was executed regarding the alleged family settlement. As per witnesses examined by plaintiffs, oral settlement took place between parties, when Prithi & Lakhmi had also agreed to give their share to plaintiffs. If it is so, it is not explained that if Lakhmi could execute Will of his share in favour of plaintiff Baldev and Prithi could suffer a decree in favour of Baldev’s sons, what had stopped Harkesh to execute any such document to authenticate the family settlement, if any. The fact that there is no such writing, further negates the theory of family settlement. 26. Still further, as per Jamabandi for the year 1980-81 forming part of the revenue excerpt Ex.PW5/1, plaintiff - Baldev is recorded to be owner of the total land to the extent of 1/3 share; whereas Prithi & Harkesh Ss/o Aarimal are recorded to be owners of remaining 2/3 share equally. There is also reference of mutation No.523, whereby the mutation of inheritance of Lakhmi Chand was sanctioned in favour of Baldev Singh on 04.09.1980, which means that Baldev had got 1/3 share in the total property on the death of Lakhmi Chand on the basis of a Will as was pleaded by him. The next Jamabandi for the year 1985-86 (Ex.P1) would reveal that Baldev is recorded to be owner to the extent of 1/3 share; defendant - Harkesh is recorded to be owner of 1/3 share; whereas Ashok Kumar, Nettar Pal, Adesh Kumar and Manish sons of Baldev are recorded to be co-owners to the extent of remaining 1/3 share. In case plaintiffs Ashok & Netarpal had become owner of the share of Harkesh in 1978 or 1980 by way of family settlement, there was no reason for not incorporating the said fact in revenue record. 27. In case plaintiffs Ashok & Netarpal had become owner of the share of Harkesh in 1978 or 1980 by way of family settlement, there was no reason for not incorporating the said fact in revenue record. 27. Jamabandi for the year 1985-86 further reveals that Baldev Singh is recorded to be in possession of 32 Kanals of the total land; whereas Ashok Kumar, Nettar Pal, Adesh Kumar and Manish Kumar, to the extent of 1/2 share and Harkesh to the extent of remaining 1/2 share, are recorded to be in possession through Ashok and Nettar Pal sons of Baldev Singh in respect of the remaining land measuring 61 Kanals 16 Marlas. 28. It is on account of the above entry in respect of the possession that it is contended by counsel for the respondents- plaintiffs that family settlement is reflected in the revenue record. I am afraid that contention is absolutely devoid of any merit. As noted above, there is absolutely no reference of any family settlement in the revenue record. Learned First Appellate Court has gone in grave error in relying upon the entries of jamabandi for the year 1985-86 or the Khasra Girdawari entries so as to hold that oral family settlement is reflected in the revenue record, which is absolutely contrary to the record. Mere possession of plaintiffs on the share of Harkesh does not ipso facto prove the family settlement considering the relations between the parties. Effect of non-appearance of defendant in witness box - 29. Still further, the First Appellate Court was also swayed by the fact that defendant - Harkesh did not enter the witness box, so as to deny the oral family settlement or possession as pleaded by the plaintiffs and so, adverse inference was drawn against him. I am afraid that mere absence of the defendant to appear in the witness box could not be a reason to draw an adverse inference against him, so as to hold that family settlement, as pleaded by the plaintiffs, was proved. 30. As held by Hon’ble Supreme Court in Maya Devi v. Lalita Prasad”, 2014 (2) RCR (Civil) 193 (SC), the absence of defendant does not absolve the trial Court or the final Court of facts from fully satisfying itself of the factual and legal veracity of the claims put forth by the plaintiffs. 30. As held by Hon’ble Supreme Court in Maya Devi v. Lalita Prasad”, 2014 (2) RCR (Civil) 193 (SC), the absence of defendant does not absolve the trial Court or the final Court of facts from fully satisfying itself of the factual and legal veracity of the claims put forth by the plaintiffs. Rather, this feature of litigation castes a greater responsibility and onerous obligation on the trial Court to be fully satisfied that claim has been proved and substantiated to the hilt by the plaintiff. The failure to file a written statement or the fact that defendant was proceeded ex parte or the fact that defendant did not appear in the witness box does not invite a punishment in the form of an automatic decree. The Court is nevertheless duty bound to diligently ensure that plaint stands proved and the prayers made therein are worthy of being granted. 31. As such, mere absence of defendant Harkesh to enter the witness box could not absolve the plaintiffs to prove the family settlement by producing cogent evidence. Besides, appellate court failed to take note of the fact that by the time it was turn of defendant to produce evidence, defendant Harkesh had already sold the suit land in June, 1988 to present appellants and thus, had lost interest in the litigation. 32. On account of entire discussion as above, the finding of the courts below to the effect that plaintiff Nos.2 and 3 had become owners of the suit property, recorded in the name of defendant Harkesh, by way of family settlement is hereby reversed. 33. In view of the aforesaid factual position, when it is not proved that any family settlement had been arrived at between the plaintiffs and defendant — Harkesh; and plaintiffs have failed to prove that they had become owners by way of alleged family settlement suffered by defendant, it becomes immaterial as to whether 1/3 share in the total property in the hands of defendant - Harkesh was ancestral or non-ancestral. In any eventuality, it is held that defendant - Harkesh was still owner to the extent of his 1/3 share in the total property. Effect of other litigation by plaintiffs / respondents — 34. In any eventuality, it is held that defendant - Harkesh was still owner to the extent of his 1/3 share in the total property. Effect of other litigation by plaintiffs / respondents — 34. Proceeding further, the present appellants, who were substituted in place of defendant - Harkesh, had admittedly purchased the suit property from Harkesh by virtue of a sale deed dated 06.06.1988 registered on 07.06.1988. The documentary evidence on record conclusively proves that four sons of plaintiff - Baldev through him had earlier filed a civil suit no: 95 on 7.6.1989 [certified copy of plaint - Ex.ExDW3/A] so as to pre-empt the said sale, which was dismissed as withdrawn vide order dated 14.05.1991 [Ex.DX]. 35. The clear inference that can be drawn is that by filing the suit, so as to pre-empt the sale favouring the appellants, plaintiff Baldev & his sons clearly admitted the legality of sale deed executed by Harkesh in favour of the present appellants as well as the consideration mentioned therein. Once it is so, plaintiffs are estopped from claiming that they had become owner of suit property by virtue of any family settlement. 36. It is further important to notice that in the present suit, plaintiffs have not challenged the sale deed of 06/07.06.1988 executed by Harkesh in favour of the present appellants on the ground of lack of consideration or any legal necessity. Rather, plaintiffs had earlier filed another independent suit on 14.06.1988 [CS N: 246/1988/1996], so as to challenge the sale on the ground that it was executed by Harkesh without any consideration or legal necessity. That suit was also dismissed as withdrawn on 23.03.1999. In Amar Chand Vs. Harji and others, 1971 PLR 821 , a suit for pre-emption as filed by reversioner of the vendor was dismissed. He subsequently filed another suit challenging the sale, under custom, for want of consideration and legal necessity. It was held by Full Bench of this court that said subsequent suit was barred. 37. In Amar Chand Vs. Harji and others, 1971 PLR 821 , a suit for pre-emption as filed by reversioner of the vendor was dismissed. He subsequently filed another suit challenging the sale, under custom, for want of consideration and legal necessity. It was held by Full Bench of this court that said subsequent suit was barred. 37. In all the aforesaid facts and circumstances, when the suit for pre-empting the sale was dismissed as withdrawn; whereas another independent suit challenging the sale in favour of the appellants on the ground that it was without consideration or without legal necessity was also dismissed as withdrawn and no challenge has been given in the present suit to the sale, it does not lie in the mouth of the plaintiffs-respondents to deny the claim of the present appellants to have become owner of the property sold by Harkesh to them, particularly when they have failed to prove any alleged family settlement/arrangement as was pleaded by them. Effect of sale during pendency of litigation (lis-pendence) — 38. No doubt that suit property was purchased by the present appellants during pendency of the suit and so, the sale is hit by the principle of lis pendens but that simply means that the appellants are bound by the result of litigation. It does not ipso facto make the sale as void. Reliance in this regard can be placed upon Thomson Press (India) Ltd. Vs. Nanak Builders & Investors P. Ltd. and others, 2013(2) Land L.R. 292 (SC)] : 2013 AIR Supreme Court 2389, wherein, it has been held by Hon’ble Supreme court in as under:- “It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. Scope of interference by High Court in concurrent findings — 39. As far as the last contention of Id. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. Scope of interference by High Court in concurrent findings — 39. As far as the last contention of Id. counsel for the respondents to the effect that there is no scope for interference by the High Court in the concurrent finding of fact is concerned, this Court in Lakhpat Rai and another Vs. J.D. Gupta and others [RSA-4958-2012 decided on 14.10.2024], after referring to Shivali Enterprises v. Godawari, 2022 SCC Online SC 1211, Mst. Chand Kaur v. Mst. Jiwi” 1968 Crl.J.554, Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, 2010 (13) SCC 2016, Easwari v. Parvathi, 2014(2) Marriage L.J. 298 (SC)] : 2014 (15) SCC 255 , Kashmir Singh vs. Harnam Singh, 2008 AIR Supreme Court 1749, RSA-5792-2019 decided on 30.01.2024 titled Sukhdev v. Manish Aggarwal and Others, concluded as under: - “To conclude, legal principles, which can be culled out are that though High Court is not to interfere with the concurrent findings of the Courts below but it is not an absolute rule. There are some exceptions for interference by the High Court, when it is found that: (vi) When finding of fact by the Courts below is vitiated by non consideration of material evidence or erroneous approach. (vii) The Courts have drawn wrong inferences from the proved facts by applying the law erroneously. (viii) The Courts have wrongly cast the burden of proof. (ix) When decision is based upon no evidence, which would mean that not only there is total dearth of evidence but also, where is the evidence taken as a whole, is not reasonably capable of supporting the finding. (x) When the judgment of the final Court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence.” 40. In the light of above exceptions, when the evidence on record in the present case is analysed, it is found that the judgment of trial court and also of the first appellate court as final Court of fact, is based on misinterpretation of documentary evidence or on _ consideration of inadmissible evidence and by ignoring material evidence. In the light of above exceptions, when the evidence on record in the present case is analysed, it is found that the judgment of trial court and also of the first appellate court as final Court of fact, is based on misinterpretation of documentary evidence or on _ consideration of inadmissible evidence and by ignoring material evidence. It is found that the evidence taken as a whole, is not reasonably capable of supporting the findings returned by the courts below. 41. As such, the contention of Ld. Counsel for respondents to the effect that there is no reason to interfere in concurrent finds of facts of courts below, is found to be devoid of any merit and, so the same is rejected. Conclusion: 42. On account of entire discussion as above, it is held that judgment and decrees as passed by the Courts below cannot be sustained. Both of them are hereby set aside. The suit as filed by the plaintiffs - respondents is hereby dismissed by holding that it is the present appellants Satish Kumar & Sumat Kumar, who are owners of the suit property purchased by them from defendant - Harkesh by virtue of sale deed dated 06.06.1988 registered on 07.06.1988. 43. The appeal is allowed accordingly. Parties are left to bear their own costs. Decree-sheet be prepared accordingly.