Punjab-Haryana High Court
Narender And Anr vs Mahender Singh And Others on 8 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:005586
RSA No.97 of 2023 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.97 of 2023 (O&M)
Reserved on:16.11.2023
Date of Order:08.01.2024
Narender and another
.Appellants
Versus
Mahender Singh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Kul Bhushan Sharma, Advocate
for the appellants.
ANIL KSHETARPAL, J
1. The Regular Second Appeal in the States of Punjab, Haryana
and Union Territory, Chandigarh, is governed by Section 41 of the Punjab
Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure,
1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi
(Dead) through LRs vs. Chandrika and others, (2016) 6 SCC 157.
2. The plaintiffs have filed this second appeal to assail the
concurrent findings of fact arrived at by the courts below while dismissing
their suit for grant of decree of declaration that they are the joint owners in
possession of the property to the extent of 1/5th share of the suit land. They
have also challenged the correctness of the registered relinquishment deed
dated 21.03.2011, executed by late Sh. Sukhi Ram in favour of his son Mr.
Mahender Singh, defendant no.1. Their suit is based on the fact that the
property is a Joint Hindu Family Coparcenary Property and the plaintiffs
have acquired the rights in the property since their birth.
3. Both the courts on appreciation of evidence have found that late
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Sh. Sukhi used to reside with Mr. Mahender Singh and the parents of the
plaintiffs were living in Ballabgarh City for the last 42 years. It has also
come in evidence that late Sh. Sukhi became an owner of some part of the
suit land through the registered gift deed dated 01.08.1987, executed by his
aunts (father's sisters). Thus, both the courts have dismissed the suit as the
defendants proved the execution of the registered deed by examining Sh.
Om Pal from the Registrar's office, Sh. Ganga Ram, the scribe, Sh. Ranvir
and Sh. Amar Chand, the attesting witnesses of the aforesaid documents.
4. Along with the appeal, an application under Order XLI Rule 27
CPC has been filed for seeking permission to produce the copy of mutation
no.3039. It has been submitted that no prejudice shall be caused to the
defendants, if the application is allowed as the document is sought to be
produced to clear the ambiguity.
5. This court has considered the submissions of the learned
counsel representing the appellant.
6. Even if the mutation entry is taken into consideration, it is
evident that the parents of the plaintiffs were not staying in the village for
more than 40 years. In such circumstances, existence of a Joint Hindu
Family is doubtful. Moreover, it has come in evidence that some part of the
land was gifted to late Sh. Sukhi by their aunts. The entire property is in a
hotchpotch. No effort has been made to distinguish the property which was
received through the gift deeds. It is the duty of the plaintiffs to identify the
ancestral property, if the self acquired property and the ancestral land is
mixed up. In the judgment passed by the Hon'ble Supreme Court in Mara
and others vs. M.S.T Nikko alia Punjab Kaur, AIR 1964 SC 1821, it has
been held that if the ancestral and non-ancestral land/properties are so mixed
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up, that identification of property is not possible, in these circumstances all
the properties shall be considerted non-ancestral.
7. Keeping in view the aforesaid facts and discussion, no ground
to interfere is made out.
8. Dismissed.
9. All the pending miscellaneous applications, if any, are also
disposed of.
08th January, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
Neutral Citation No:=2024:PHHC:005586
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