Punjab-Haryana High Court
(O&M) Satish Kumar And Anr vs Baldev Singh And Ors on 14 November, 2024
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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.. Plain ffs alleged that defendant wanted to sell his share without
any no ce, knowledge or consent of the plain ffs and without any legal
necessary or considera on. Defendant also started interfering in the
possession of the plain ffs over the suit land. With these averments, suit
[civil suit N: 950 of 1983] was brought by the plain ffs on 28.11.1983 seeking
a decree of permanent injunc on to restrain the defendant from interfering
in their possession over the suit land and also from aliena ng the land to the
extent of 1/3rd share in any manner, whatsoever.
3.2 Defendant-Harkesh, though in his ini al wri*en statement
denied the ancestral nature of the suit property, but in the amended wri*en
statement, admi*ed the ancestral nature of the suit property. He, however,
denied that par es 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 cul va ng possession thereof without
any interference from any side. Controver ng 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 plain ff and defendant are members of the joint Hindu
family? OPP
2. Whether the suit land is ancestral property of defendant qua plain ffs
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 plain ffs are in exclusive possession of suit land, as
alleged? OPP
5. Whether the plain ff No.1, 2 and 3 are owner to the extent of 2/3 rd
share? OPP
6. Whether the suit is not maintainable? OPD
7. Whether the plain ffs have no locus standi to file the suit? OPD
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8. Whether the plain ffs 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 jurisdic on? OPD
10. Whether the defendant is owner to the extent of 1/3rd share in the
suit land, if so, to what effect? OPD.
11. Relief.
3.4 An applica on moved by the plain ffs for amendment of the
plaint was allowed in September, 1986. In the amended plaint, it was pleaded
by the plain ffs that by virtue of family se*lement and arrangement,
plain ffs 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 declara on to that
effect.
3.5 Learned trial Court of Ld. Addi onal Senior Sub Judge, Gurgaon
vide its order dated 05.01.1987 dismissed the suit by trea ng 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 plain ffs, suit
property was ancestral coparcenary property and as such, the Karta could not
be restrained from aliena ng 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. District Judge, Gurgaon that in the amended plaint, plain ffs had
specifically pleaded about a family se*lement with the defendant, by virtue
of which it was claimed that plain ff 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.
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3.7 ThereaCer, following addi onal issues was framed by the trial
Court on 10.08.1987.
"10 A. Whether the plain ffs Nos.2 and 3 became owners to the extent of
1/3rd share of the defendant under the family se*lement/arrangement?"
3.8 Plain ffs 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
par es to the suit formed a joint Hindu family; that suit property was
ancestral in the nature in the hand of defendant qua the plain ffs 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 plain ffs. 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 plain ff Nos.2 and 3 by way of the family
se*lement and as such, plain ff No.1 is now the owner to the extent of 1/3
share in the total property; whereas, plain ffs 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 plain ffs are in cul va ng possession of the en re
property. The findings on issue Nos.6 and 7 were also returned in favour of
the plain ffs & 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 plain ff No.1 as owner to the extent of 1/3 share
and plain ff Nos.2 and 3 as owner to the extent of 2/3 share in joint
possession of the en re joint land. Defendant was restrained from interfering
in the possession of the plain ffs over the suit land or from aliena ng 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
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03.09.1991. During pendency of that appeal, the sole appellant-defendant -
Harkesh expired on 25.07.1994.
4.2 An applica on was moved by the respondents/plain ffs under
Order 22 Rule 3 (2) CPC to dismiss the appeal having abated. On the other
hand, another applica on under Order 22 Rule 10 CPC and Order 1 Rule 10
CPC was moved by Sa sh Kumar and Sumat Ss/o Jagdish Parshad (present
appellants) to implead/subs tute 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
considera on of ₹90,000/- and as such, defendant was leC with no right, tle
or interest in the suit property. It was alleged that plain ffs being the family
members of the defendant, this fact was concealed by vendor - Harkesh
from the Court and that with an inten on to cheat the applicants, said
defendant had not even appeared as his own witness in the witness box and
in collusion with the plain ffs, lost the li ga on in favour of his son and
grandsons. They prayed to subs tute them in place of the appellant -
defendant. Vide order dated 06.03.1995, learned Addl. District Judge,
Gurgaon dismissed the applica on of the respondents/plain ffs so as to
reject the appeal having abated. By way of the same order, the applica on
under Order 22 Rule 10 CPC to subs tute the applicants as appellants was
allowed.
4.3 The subs tuted appellants, i.e. present appellants then moved
an applica on for amendment of the wri*en statement. That applica on was
partly allowed by learned Addl. District Judge, Gurgaon vide order dated
13.01.1997 by permiKng them to amend the wri*en statement so as to add
the plea about the maintainability of the suit in view of a pre-emp on suit
previously filed by the plain ffs. 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 wri*en statement
accordingly and the consequent amended replica on, issues Nos.6 and 8
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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 plain ffs
filed a suit for pre-emp on admiKng the correctness of the sale as alleged?
OPD.
8. Whether the plain ffs are estopped from filing the suit because they
admi*ed the correctness of the sale and filed the suit for pre-emp on 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 par es 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 (subs$tuted appellants). It was held that in view of the legal
posi on 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
plain ffs was not maintainable, as in the suit for possession by way of pre-
emp on, plain ffs had admi*ed the correctness of the sale deed executed by
Harkesh, the father of plain ff Baldev and grandfather of Ashok & Ne*er Pal
etc. in favour of the appellants. It was also held that by admiKng the
correctness of the sale deed in suit for possession by way of pre-emp on, the
plain ffs 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
plain ffs.
6. ACer 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 plain ffs 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
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Amarchand's case (supra) was not applicable. It was also no ced that as pre-
emp on 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 plain ffs was
hit by the principle of lis pendens and so, it could not be said that the suit was
not maintainable because of the filing of the pre-emp on 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 se*lement, plain ffs 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 subs tuted defendants have approached this
Court by way of the present regular second appeal.
Conten-ons 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-plain ffs, 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 a*en on towards revenue
excerpt (Ex.PW5/1), it is argued that the plain ffs 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 a*en on is drawn towards
the fact that aCer 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. plain ff
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No.1 through a Will; whereas Prithi, another real brother of Harkesh had
given his share to plain ff 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 plain ffs 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 plain ffs 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 plain ffs regarding the alleged family
se*lement, learned Sr. counsel for the appellants has drawn a*en on
towards the plaint ini ally filed by the plain ffs, wherein there is absolutely
no reference of any family se*lement. Even in the amended wri*en
statement, the plain ffs only pleaded that plain ff Nos.2 and 3 had become
owners of the 1/3 share of the defendant in the suit property by way of a
family se*lement, without disclosing as to when that family se*lement had
taken place and whether it was oral or wri*en. It is pointed out that the
Courts below accepted the theory of family se*lement on the basis of oral
evidence and the fact that defendant - Harkesh had not appeared as a
witness. The Court failed to no ce the fact that said Harkesh had
inten onally 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 no ce that apart from the oral plea of family se*lement in the
amended plaint, there was no evidence to prove the alleged family
se*lement, the onus of which was upon the plain ffs. Mere absence of the
defendant from the witness box could not prove the case of the plain ffs
regarding the alleged family se*lement, which was not even reflected in the
revenue record, in which, Harkesh con nued to be shown as owner of his 1/3
share.
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8.3 S ll further, it is argued by learned Sr. counsel for the appellants
that by filing a suit for pre-emp on so as to pre-empt the sale deed dated
06.06.1988 registered on 07.06.1988 in favour of the appellants for
considera on of ₹90,000/- as executed by Harkesh, the plain ffs had
admi*ed the sale as well as the sale considera on as men oned 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 commi*ed error
in upseKng these findings on amended issue Nos.6 and 8 and ignored the
legal posi on as explained by the Full Bench of this Court in Amarchand's
case (supra).
8.4 Learned Sr. counsel for the appellants has further drawn
a*en on towards the fact that besides the fact that the suit for pre-emp on
by plain ffs was dismissed as withdrawn, plain ffs 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 considera on.
However, that suit was also dismissed as withdrawn. One more suit was filed
on 15.02.1984 by the plain ffs seeking declara on on the basis of alleged
family se*lement 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 commi*ed grave error in decreeing the suit.
Conten-ons raised by respondents - plain-ffs:
9.1 Refu ng the aforesaid conten ons, it is argued by learned
counsel for the respondents-plain ffs 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 a*en on 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.
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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 plain ff Nos.2 and 3 had become owner of 1/3 share of defendant -
Harkesh in the suit property by way of family se*lement, is also a concurrent
finding of fact, based upon evidence on record, as the witnesses examined by
the plain ffs 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 se*lement, 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
plain ffs gran ng them desired relief, so, the suit for pre-emp on and the
other suits for declara on were dismissed as withdrawn and therefore,
appellants can not draw any advantage of that li ga on.
9.5 With these submissions, learned counsel for the respondents -
plain ffs prayed for dismissal of the appeal.
10. This Court has considered submissions of both the sides at depth
and has appraised the en re record carefully with the able assistance
provided by the counsels from both sides.
Analysis by this Court:
*Whether suit property was ancestral -
11. Since plain ffs 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 se*lement, so the first ques on 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 plain ffs.
As per revenue excerpt (Ex.PW5/1), Ram Singh, the common ancestor of the
par es (as ini$ally impleaded in the suit) is recorded as the earliest owner of
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the total land. He was succeeded by his sons Hameera and Aarimal, as per
Jamabandi for the year 1877, which entries con nued ll 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 ll 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 ll 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 plain ffs, 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 plain ff 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 en re property measuring 93 kanals 16
marlas is shown to be joint property. It is not the case of the either of the
par es that it has ever been par oned at any point of me.
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 plain ff 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 plain ffs; whereas, the plain ffs
claim that the remaining 1/3 share in the hands of Harkesh was ancestral in
his hands. It is not specified as to which par cular 1/3 share of total land was
ancestral in the hands of Harkesh, as the total property was never
par oned.
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
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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. Par on having never taken place amongst three brothers, i.e.
Lakhmi Chand, Prithi and Harkesh; and later on amongst three plain ffs &
Harkesh, plain ffs 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 plain ffs was non-ancestral, as the en re property became a hotch-
potch of ancestral and non-ancestral property in the hands of plain ffs &
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 por ons 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. Jus ce
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........"
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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. Mi*al, 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 giC 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 giC 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 en re holding, of which he became owner, he did not giC half
share to his son and half to his daughter-in-law. He in fact made a giC 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 giCed 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 en re land is non-ancestral.
Reference in this connec on may be made to Division Bench judgment in
Labh Singh and Anr. v. Smt. Jasso and Anr., A.I.R. 1933 Lahore 180."
18. Thus, legal posi on, which can be culled out is that where lands
are so mixed up that the ancestral and non ancestral por ons cannot be
separated, they must be regarded as non-ancestral, unless it is shown which
are ancestral and which are not.
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19. Applying the above legal posi on 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 hesita on to
conclude that there could not be any transfer of tle of the said property in
favour of plain ffs N: 2 & 3 by virtue of alleged family se*lement/
arrangement, except by way of registra on 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 plain ffs, the ques on
is whether they are able to prove alleged family se*lement, whereby
defendant - Harkesh had allegedly transferred his 1/3 share to plain ff Nos.2
and 3.
*Whether Family Se?lement proved -
22. In this regard, it is necessary to first refer to the pleadings of the
plain ffs. In the ini al plaint filed in November, 1983, there is absolutely no
reference of any family se*lement. It is only in the amended plaint filed in
September, 1986 that plain ffs for the first me claimed that plain ff Nos.2
and 3 got the property from defendant - Harkesh in a family se*lement, but
here also, no date, month or year has been men oned as to when that family
se*lement 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 ques on as to whether on
allowing the applica on for amendment of the pleadings, courts can overlook
the unamended pleading part of the record. This Court answered the
ques on as under: -
"It is well se*led that merely because the amendment in the pleadings have
been permi*ed, 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
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courts while deciding the case. Admission made in the unamended wri*en
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 wri*en statement was allowed subject to
evidence of coercion or misrepresenta on. 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
se*lement in the original plaint and when the plaint is amended aCer about
three years, there is no detail as to the date, month or year, when any such
family se*lement took place, it appears that said story of family se*lement is
a mere concoc on.
24. In order to prove the family se*lement as claimed, plain ffs
relied upon the oral evidence, which is contradictory. One of the plain ffs
Baldev examined as PW1 says that the family se*lement was oral & had
taken place in 1980; PW2 Gajraj, examined in December 1987 says that
family se*lement 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, plain ff Nos.2 and 3 had become owners of 1/3 share of the
property of defendant - Harkesh by way of a family se*lement, either in
1978 or 1980, plain ffs must have referred in the plaint. The mere fact that
there was no reference of any such family se*lement in the plaint filed in
1983, in itself is sufficient to draw an inference that the story of family
se*lement is mere concoc on.
25. Apart from above, there is no suppor ng evidence to show any
family se*lement between the par es. It is admi*ed case of the plain ffs
that no wri ng was executed regarding the alleged family se*lement. As per
witnesses examined by plain ffs, oral se*lement took place between par es,
when Prithi & Lakhmi had also agreed to give their share to plain ffs. If it is
so, it is not explained that if Lakhmi could execute Will of his share in favour
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of plain ff Baldev and Prithi could suffer a decree in favour of Baldev's sons,
what had stopped Harkesh to execute any such document to authen cate
the family se*lement, if any. The fact that there is no such wri ng, further
negates the theory of family se*lement.
26. S ll further, as per Jamabandi for the year 1980-81 forming part
of the revenue excerpt Ex.PW5/1, plain ff - 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 muta on No.523, whereby the muta on of inheritance of
Lakhmi Chand was sanc oned 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, Ne*ar Pal, Adesh Kumar and
Manish sons of Baldev are recorded to be co-owners to the extent of
remaining 1/3 share. In case plain ffs Ashok & Netarpal had become owner
of the share of Harkesh in 1978 or 1980 by way of family se*lement, there
was no reason for not incorpora ng 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, Ne*ar Pal, Adesh Kumar and Manish Kumar, to the extent of
1/2 share and Harkesh to the extent of remaining ½ share, are recorded to be
in possession through Ashok and Ne*ar 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- plain ffs that family
se*lement is reflected in the revenue record. I am afraid that conten on is
absolutely devoid of any merit. As noted above, there is absolutely no
reference of any family se*lement in the revenue record. Learned First
Appellate Court has gone in grave error in relying upon the entries of
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jamabandi for the year 1985-86 or the Khasra Girdawari entries so as to hold
that oral family se*lement is reflected in the revenue record, which is
absolutely contrary to the record. Mere possession of plain ffs on the share
of Harkesh does not ipso facto prove the family se*lement considering the
rela ons between the par es.
*Effect of non-appearance of defendant in witness box -
29. S ll 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 se*lement or possession as pleaded by the plain ffs 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 se*lement, as
pleaded by the plain ffs, was proved.
30. As held by Hon'ble Supreme Court in Maya Devi v. Lalita
Prasad" 2014 (2) R.C.R. (Civil) 193 (SC), the absence of defendant does not
absolve the trial Court or the final Court of facts from fully sa sfying itself of
the factual and legal veracity of the claims put forth by the plain ffs. Rather,
this feature of li ga on castes a greater responsibility and onerous obliga on
on the trial Court to be fully sa sfied that claim has been proved and
substan ated to the hilt by the plain ff. The failure to file a wri*en
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 automa c 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 plain ffs to prove the family se*lement by
producing cogent evidence. Besides, appellate court failed to take note of the
fact that by the me it was turn of defendant to produce evidence,
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defendant Harkesh had already sold the suit land in June, 1988 to present
appellants and thus, had lost interest in the li ga on.
32. On account of en re discussion as above, the finding of the
courts below to the effect that plain ff Nos.2 and 3 had become owners of
the suit property, recorded in the name of defendant Harkesh, by way of
family se*lement is hereby reversed.
33. In view of the aforesaid factual posi on, when it is not proved
that any family se*lement had been arrived at between the plain ffs and
defendant - Harkesh; and plain ffs have failed to prove that they had
become owners by way of alleged family se*lement 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 s ll owner to the extent
of his 1/3 share in the total property.
*Effect of other li-ga-on by plain-ffs / respondents -
34. Proceeding further, the present appellants, who were
subs tuted in place of defendant - Harkesh, had admi*edly 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 plain ff - Baldev through him had earlier filed a civil
suit n: 95 on 7.6.1989 [cer$fied 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, plain ff Baldev & his sons
clearly admi*ed the legality of sale deed executed by Harkesh in favour of
the present appellants as well as the considera on men oned therein. Once
it is so, plain ffs are estopped from claiming that they had become owner of
suit property by virtue of any family se*lement.
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36. It is further important to no ce that in the present suit, plain ffs
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 considera on or any
legal necessity. Rather, plain ffs 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 considera on 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-emp on as filed by
reversioner of the vendor was dismissed. He subsequently filed another suit
challenging the sale, under custom, for want of considera on 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-emp ng 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 considera on 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 plain ffs-respondents to deny
the claim of the present appellants to have become owner of the property
sold by Harkesh to them, par cularly when they have failed to prove any
alleged family se*lement/arrangement as was pleaded by them.
Effect of sale during pendency of li-ga-on (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 li ga on. 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 AIR Supreme Court 2389,
wherein, it has been held by Hon'ble Supreme court in as under:-
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"It is well se*led that the doctrine of lis pendens is a doctrine based on the
ground that it is necessary for the administra on of jus ce that the decision
of a court in a suit should be binding not only on the li ga ng par es but on
those who derive tle pendente lite. The provision of this Sec on does not
indeed annul the conveyance or the transfer otherwise, but to render it
subservient to the rights of the par es to a li ga on."
Scope of interference by High Court in concurrent findings -
39. As far as the last conten on of ld. 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],
aCer referring to Shivali Enterprises v. Godawari, 2022 SCC Online SC 1211,
Mst. Chand Kaur v. Mst. Jiwi" 1968 Crl.J.554, Municipal Commi?ee,
Hoshiarpur v. Punjab State Electricity Board, 2010 (13) SCC 2016, Easwari v.
Parvathi, 2014 (15) SCC 255, Kashmir Singh vs. Harnam Singh, 2008 AIR
Supreme Court 1749, RSA-5792-2019 decided on 30.01.2024 -tled 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 excep ons for
interference by the High Court, when it is found that:
x When finding of fact by the Courts below is vi ated by non
considera on of material evidence or erroneous approach.
x The Courts have drawn wrong inferences from the proved facts by
applying the law erroneously.
x The Courts have wrongly cast the burden of proof.
x 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 suppor ng
the finding.
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x When the judgment of the final Court of fact is based on
misinterpreta on of documentary evidence or on considera on of
inadmissible evidence or ignoring material evidence."
40. In the light of above excep ons, 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
misinterpreta on of documentary evidence or on considera on of
inadmissible evidence and by ignoring material evidence. It is found that the
evidence taken as a whole, is not reasonably capable of suppor ng the
findings returned by the courts below.
41. As such, the conten on 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 en re 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 plain ffs -
respondents is hereby dismissed by holding that it is the present appellants
Sa sh 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. Par es are leC to bear their
own costs. Decree-sheet be prepared accordingly.
14.11.2024 (DEEPAK GUPTA)
Vivek/sarita JUDGE
Whether speaking/reasoned? Yes
Whether reportable? Yes
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