Punjab-Haryana High Court
Wariam Singh vs Yashpal And Anr on 6 August, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:106327
RSA No.1817 of 2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1817 of 2022 (O&M)
Date of decision : 06.08.2024
Wariam Singh ....Appellant
Versus
Yashpal and another ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. B.S. Jatana, Advocate
for the appellant.
PANKAJ JAIN, J. (ORAL)
CM No.6187-C of 2022
This is an application filed under Section 5 of Limitation
Act seeking condonation of delay of 87 days in filing the instant appeal.
For the reasons recorded in the application, this Court is
satisfied that the applicant/appellant has made out a sufficient cause for
condonation of delay.
Consequently, the present application is allowed. The delay
of 87 days in filing the instant appeal is hereby condoned.
Plaintiff is in second appeal.
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2. For convenience, the parties herein after are referred to by
their original position in the suit i.e. the appellant as the plaintiff and
the respondents as the defendants.
3. Plaintiff filed suit seeking declaration to the effect that the
sale deed bearing Vasika No.764 dated 26th of May, 1999, sale deed
bearing Vasika No.495, dated 21st of May, 2007 executed by defendant
No.2 father of the plaintiff in favour of defendant No.1 selling share in
the suit land as detailed out in Para No.1 of the plaint, are illegal, null
and void. Further relief of permanent injunction was sought against
defendant No.1.
4. As per the averments raised in the plaint, the plaintiff
claimed that the sale deeds challenged by way of instant suit were
result of fraud and impersonation. Defendant No.2 used to sell
agriculture produce at the shop of defendant No.1. Defendant No.1 got
thumb impressions of defendant No.2 on blank papers which have been
misused to forge sale deeds. It was further claimed that the property
was a joint Hindu Family Ancestral and Co-parcenary Property and
there was no legal necessity for defendant No.2 to sell the same.
5. Defendant No.2 was proceeded ex parte. Defendant No.1
contested the suit defending the sale deeds. It was claimed that the
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present suit has been filed at the behest of a local political leader who is
trying to forcibly dispossess defendant No.1.
6. On the basis of the pleadings of the parties, the Trial Court
framed the following issues:
"i) whether the plaintiff is entitled to the relief of declaration
as prayed for ? OPP
ii) Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for ? OPP
iii) Whether the present suit is not maintainable in the present
form ? OPD
iv) Whether the plaintiff has no cause of action to file the
present suit? OPD
v) Whether the plaintiff has concealed the material facts from
the Court ? OPD
vi) Relief."
7. Returning findings on issues No.1 and 2, Trial Court found
that the plaintiff failed to prove property in hands of defendant No.2 as
a joint family property or co-parcenary property. The present suit has
been filed without impleading other members of the family i.e. brothers
of the plaintiff namely Jagir Singh, Wazir Singh and Ranjit Singh and
thus the suit was bad for non-joinder of necessary parties.
8. In appeal preferred by the plaintiff, lower Appellate Court
came to the conclusion that the plaintiff having failed to lead any
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evidence to show the nature of the land and to prove the fraud claimed
in the plaint, there was no reason to interfere in the findings recorded
by the Trial Court and thus dismissed the appeal.
9. Mr. Jattana while assailing the impugned judgments and
decree passed by the Courts below submits that defendant No.1 while
appearing before the Court admitted in his testimony that the plaintiff
as well as defendant No.2 used to sell their agriculture produce at his
shop. Thus, Courts below ought to have taken cognizance of the said
fact which points towards fraud played upon by defendant No.2 who
sold the land of joint family without any necessity. He thus submits
that the Courts below erred in dismissing the suit filed by the plaintiff.
10. I have heard counsel for the plaintiff and have carefully
gone through records of the case.
11. Appellant-plaintiff claims land to be a joint Hindu family
property.
12. As per settled law, in order to prove joint family property, it
is incumbent upon the party who asserts joint Hindu family property to
prove nucleus which led to acquisition of the said property. In the
present case, there is no evidence to prove that there was a nucleus
owned by the joint Hindu family which led to acquisition of the
property in dispute. So far as source of the property is concerned, the
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plaintiff himself admits in his cross-examination that property was
purchased by defendant No.2 during his lifetime and was not inherited
by him from his father. Thus, there being no evidence on record to
prove the property to be ancestral or joint Hindu family property or a
co-parcenary property, this Court is of the opinion that the plaintiff
cannot question authority of defendant No.2 in alienating the suit
property in favour of defendant No.1.
13. So far as the plea of fraud and misrepresentation is
concerned, the only person who is in position to allege that the sale
deeds are result of fraud and misrepresentation, is defendant No.2.
Conspicuously he has opted not to contest the suit and was proceeded
ex parte. Mere admission on part of defendant No.1 that the family
members of the plaintiff and defendant No.2 used to sell their
agriculture produce at his shop is not sufficient to prove fraud alleged
to have been played by defendant No.1 upon defendant No.2.
14. In view of above, this Court finds no reason to interfere in
the findings recorded by both the Courts below. Resultantly, instant
Regular Second Appeal is ordered to be dismissed.
August 06, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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