Abdul Rehman vs Jubeda
2022 Latest Caselaw 4722 P&H

                                  106

                                               IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                              CHANDIGARH

                                                                              RSA-5472-2019 (O&M)
                                                                              Reserved on 11.05.2022
                                                                              Date of decision : 17.05.2022

                                  Abdul Rehman                                                           .....Appellant
                                                                       versus
                                  Smt. Jubeda                                                          .....Respondent



                                  CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                                  Present :        Mr. Mohammad Arshad, Advocate
                                                   for the appellant.


                                  ALKA SARIN, J.

CM-15573-C-2019

For the reasons mentioned in the application, the delay of 22

days in filing the appeal is condoned.

CM disposed off.

RSA-5472-2019

The present regular second appeal has been preferred by the

plaintiff-appellant against the judgments and decrees passed by both the

Courts below dismissing his suit for declaration, possession and permanent

injunction.

Brief facts relevant to the present lis are that the plaintiff filed a

suit challenging the alienation made by his father, Juhru, by virtue of sale

deed dated 03.08.1994 in favour of the defendant thereby selling land

measuring 6 kanal 16 marlas. It was averred that the plaintiff and his father

belong to the Meo caste and were governed by custom as per which a

YOGESH SHARMA 2022.05.17 15:31 proprietor cannot alienate ancestral property without legal necessity or I attest to the accuracy and authenticity of this order/judgment.

Punjab and Haryana High Court, Chandigarh without the consent of successors but Juhru sold the same without legal

necessity in favour of the defendant and without the consent of the plaintiff

and, as such, the alienation was bad. It is further pleaded that the alienation

made by Juhru was without any consideration and that a fraud was played

upon Juhru by the defendant while obtaining the sale deed.

The defendant appeared and filed written statement raising

objections regarding limitation pleading that though the sale deed had been

executed on 03.08.1994 the suit was filed in 2017 and was barred. On merits

it was pleaded that the suit property had been sold by Juhru for legal

necessity for purchasing other land. Alternatively, it was pleaded that the

suit property was the self-acquired property in the hands of Juhru and was

not inherited by him from his ancestors. It was denied that the plaintiff and

Juhru were governed by custom or that any fraud had been played upon

Juhru.

From the pleadings of the parties, the following issues were

framed :

1. Whether the suit land is ancestral property in the

hands of Juhru ? OPP

2. Whether the sale deed no.1052 dated 03.08.1994 is

illegal, null and void ? OPP

3. Whether suit of plaintiff is not maintainable ? OPD

4. Relief.

The Trial Court, vide judgment and decree dated 25.01.2019,

dismissed the suit of the plaintiff. It was found that though the suit property

was ancestral, it stood proved that the sale was made for legal necessity. The

suit filed by the plaintiff was held to be barred by limitation. All the issues YOGESH SHARMA 2022.05.17 15:31 I attest to the accuracy and authenticity of this order/judgment.

Punjab and Haryana High Court, Chandigarh were decided against the plaintiff. Aggrieved by the said judgment and

decree passed by the Trial Court, an appeal was preferred by the plaintiff

which was dismissed vide judgement and decree dated 29.07.2019. Hence,

the present regular second appeal.

Learned counsel for the plaintiff-appellant has contended that

the Courts below have erred in dismissing the suit of the plaintiff. According

to him, the sale of the suit property by Juhru was without necessity and

infact Juhru received no consideration. It was submitted that as per the

prevalent custom Juhru could not alienate the suit property, which was

ancestral property, without legal necessity or without the consent of his

successors but Juhru sold the same without legal necessity and without the

consent of the plaintiff.

Heard learned counsel for the plaintiff-appellant and perused

the paper-book.

The Courts below have found that the evidence available on the

record produced by the plaintiff showed that the sale of the suit property by

Juhru was for legal necessity. The sale deed Ex.PW2/A itself records

"Kharch Khaangi anya bhumi kharid karne hetu dhan ki jaroorat hai"

which means that the sale was being done for meeting domestic expenses

and for purchasing other land. Thus, the intention of Juhru to sell the suit

property was for legal necessity. The contention of counsel for the plaintiff

that the sale in favour of the defendant was without consideration is belied

by the testimony of his own witness PW4 who stated that Juhru received

40,000/- from Haroon the husband of defendant before the Sub-Registrar in

his presence. The suit has also been held to be barred by limitation also. The

sale deed which has been challenged was executed on 03.08.1994 while the YOGESH SHARMA 2022.05.17 15:31 I attest to the accuracy and authenticity of this order/judgment.

Punjab and Haryana High Court, Chandigarh present suit was filed in 2017 - after over 23 years. So far as the contention

of the counsel for the plaintiff that the plaintiff was governed by custom,

suffice it to say that it is well settled that custom has to be specifically

pleaded and established by leading cogent evidence by the person

propounding such custom. In the absence of specific pleadings supported by

evidence the plea of custom cannot be accepted. In the present case the

plaintiff failed to establish the applicability of customary law. The learned

counsel for the plaintiff has not been able to dislodge the factual findings

recorded by both the Courts below and has simply reiterated the submissions

that were advanced before the Courts below and which submissions were

rejected after due and comprehensive consideration.

No question of law, much less, any substantial question of law

arises in the present case. Both the Courts below have recorded concurrent

findings of fact warranting no interference by this Court.

In view of the above, I do not find any illegality and infirmity in

the judgments and decrees passed by the Courts below. The appeal is,

accordingly, dismissed. Pending applications, if any, also stand disposed off.

Dismissed.

                                  17.05.2022                                         (ALKA SARIN)
                                  Yogesh Sharma                                         JUDGE
                                               NOTE :     Whether speaking/non-speaking : Speaking
                                                          Whether reportable : Yes/No




YOGESH SHARMA
2022.05.17 15:31

I attest to the accuracy and authenticity of this order/judgment.

Punjab and Haryana High Court, Chandigarh