Munish Kumar And Anr vs Deepak Kumar And Ors
2022 Latest Caselaw 12395 P&H

                                   RSA-986-2019 (O&M)                                                          1

                                   101
                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                                CHANDIGARH

                                                                                    RSA-986-2019 (O&M)
                                                                                    Reserved on : 06.09.2022
                                                                                    Date of decision : 28.09.2022


                                   Manish Kumar and Another                                             ....Appellants

                                                                       Versus

                                   Deepak Kumar & Others                                            .....Respondents



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                                   Present :        Mr. Rishi Pal Singh, Advocate for the appellants.


                                   ALKA SARIN, J.

The present appeal has been preferred against the judgments

and decrees passed by both the Courts below dismissing the suit filed by the

plaintiff-appellants.

The brief facts relevant to the present lis are that the plaintiff-

appellants filed a suit for declaration to the effect that plaintiff-appellant

No.1 was owner and in joint possession of land to the extent of half share

belonging to Ram Sarup described in detail in the head-note of the plaint.

Further, a gift deed bearing No.1124 dated 04.12.2006 registered in the

office of Sub-Registrar, Mullana and mutation No.2148 dated 04.01.2007

was also challenged as being illegal, null and void. The plaintiff-appellants

filed the suit averring therein that Ram Sarup was the owner of the suit land

and constituted a joint Hindu family with his two sons, namely, Ram Kumar

and Ravinder Pal. Ram Kumar, the predecessor-in-interest of the plaintiff- YOGESH SHARMA 2022.09.28 16:50 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

appellants died in 1996. Ram Sarup, the grandfather of plaintiff-appellant

No.1 and father-in-law of plaintiff-appellant No.2, was under the influence

and pressure of Ravinder Pal, defendant No.3 (since deceased). It was

further averred that a Panchayat of Mullana and Jyotisar took place which

was attended by Ram Sarup and Ravinder Pal, defendant No.3 (since

deceased) and other respectables of the Villages Mullana and Jyotisar

wherein it was decided that the suit land would remain in the name of Ram

Sarup during his lifetime and that Ram Sarup would neither dispose it off

nor transfer or alienate the same during his life time and that the same shall

be inherited by the plaintiff-appellants and Ravinder Pal, defendant No.3

(since deceased), to the extent of half share each. It was also agreed that

Ram Sarup would execute a Will in favour of the plaintiff-appellant No.1

and his son Ravinder Pal, defendant No.3 (since deceased). The agreement

is stated to have been reduced into writing on 01.12.1996 and was duly

signed/thumb-marked by the parties. It was further averred that in

March/April 2010, the defendant-respondents started disputing the right of

the plaintiff-appellants and started interfering in the peaceful joint

possession of the plaintiff-appellants and that Ravinder Pal, defendant No.3

(since deceased), gifted the entire land to defendant-respondent Nos.1 and 2

by virtue of gift deed dated 04.12.2006.

The suit was contested by the defendant-respondents on the

ground that the plaintiff-appellants had no pre-existing right in the suit land

which was a self-acquired property of Ram Sarup and that he gifted the same

in favour of the defendant-respondent Nos.1 and 2 in lieu of love, affection

and services rendered by them to him. It was further averred that the

plaintiff-appellants never constituted a joint Hindu family with Ram Sarup. YOGESH SHARMA 2022.09.28 16:50 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

It was further the assertion that the plaintiff-appellant No.2 deserted her

husband few days after marriage and that she never lived, stayed and

cohabited with deceased Ram Kumar. It was further alleged that the

agreement dated 01.12.1996 was forged and fabricated.

Rejoinder was filed controverting the averments made in the

written statement and reiterating those made in the plaint.

On the basis of the pleadings, the following issues were framed:

1. Whether the plaintiffs are entitled to decree for

declaration to the effect that plaintiff No.1 is owner

and in joint possession of land to the extent of ½

share belonging to Ram Sarup of the suit land as

prayed for ? OPP

2. If issue no.1 is decided in favour of the plaintiffs,

then whether they are entitled to relief of

permanent injunction as prayed for ? OPP

3. Whether the suit of the plaintiffs is not

maintainable in the present form ? OPD

4. Whether the plaintiffs have no locus standi to file

the present suit ? OPD

5. Whether the plaintiffs are estopped from filing the

present suit by their own act and conduct ? OPD

6. Whether the suit of the plaintiffs is bad for mis-

joinder and non-joinder of the necessary parties ?

OPD

7. Relief.

YOGESH SHARMA 2022.09.28 16:50 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

The Trial Court held that the plaintiff-appellants had failed to

prove that the property was joint Hindu family property and that the

plaintiff-appellants had also failed to prove that the gift deed dated

04.12.2006 was the outcome of fraud and misrepresentation. The suit was

dismissed vide judgment and decree dated 21.12.2015. Aggrieved by the

said judgment and decree, an appeal was preferred which also met with the

same fate.

Learned counsel for the plaintiff-appellants has contended that

an application for additional evidence has been filed with the present appeal

being CM-2268-C-2019 and that a perusal of Annexures A-1 to A-3 would

reveal that the property was ancestral. It was further the contention of

learned counsel that the Courts below have not appreciated the evidence on

the record. Learned counsel for the plaintiff-appellants has further contended

that written compromise dated 01.12.1996 stood duly proved and hence the

gift deed was illegal, null and void.

Heard.

In the present case, though it has been averred in the plaint that

Ravinder Pal, defendant No.3 (since deceased), had executed a gift deed in

favour of defendant-respondent Nos.1 and 2, however, the gift deed sought

to be challenged had been executed by Ram Sarup in favour of his grandsons

(defendant-respondent Nos.1 and 2 herein). Ex.P4, which is the gift deed

under challenge, also reveals that the same has been executed by Ram Sarup

in favour of Deepak Kumar and Rohit Kumar (defendant-respondent Nos.1

and 2 herein). There is not an iota of evidence on the record to prove that the

property was ancestral in the hands of Ram Sarup and that he was not

competent to execute the gift deed. The onus to prove that the property was YOGESH SHARMA 2022.09.28 16:50 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh

ancestral joint Hindu family property was on the plaintiff-appellants who

miserably failed to discharge the said onus. Still further, even if the

compromise dated 01.12.1996 (Ex.P1) is taken to have been proved even

then the same would not be a bar for Ram Sarup to have executed a gift deed

in favour of defendant-respondent Nos.1 and 2. Having failed to show that

the suit property was ancestral joint Hindu family property, Ram Sarup

being the absolute owner, would have every right to dispose off the property

in the manner which he liked. Though it has been averred in the plaint that

the gift deed dated 04.12.2006 is an outcome of fraud and misrepresentation,

however, no details of the fraud or misrepresentation have either been

pleaded or proved. It is well settled that the fraud as alleged in the plaint

must state those facts which together taken as a whole, if proved, would

show and establish fraud and that the pleading of fraud should be

conspicuous and palpable and should not be predicated on mere suspicion

and conjecture.

In view of the above, I do not find any merit in the present

appeal. No question of law, much less, substantial question of law, arises in

the present appeal. The regular second appeal is accordingly dismissed.

Pending applications, if any, also stand disposed off.

Dismissed.

                                                                                     ( ALKA SARIN )
                                   28.09.2022                                             JUDGE
                                   Yogesh Sharma

NOTE : Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

YOGESH SHARMA 2022.09.28 16:50 I attest to the accuracy and integrity of this order/judgment Punjab and Haryana High Court, Chandigarh