Harpreet Kaur and Others vs Surjeet Kaur

Jaswant Singh, J.—Plaintiffs/appellants are in second appeal against the judgment and decree dated 15.03.2013, whereby the learned Additional District Judge, Ambala has reversed the findings of the learned trial Court whereby learned Civil Judge (Jr. Divn.), Ambala decreed the suit on 15.04.2010, and dismissed the suit filed by the plaintiff for declaration and permanent injunction. In brief, facts of the case are that plaintiffs/appellants filed a suit for declaration challenging the validity of the judgment and decree dated 14.12.1989 passed in Civil Suit No. 293 dated 3.6.1989 titled as Surjeet Kaur Vs. Gajjan Singh on the ground that the property in question is ancestral property left by Gajjan Singh and, therefore, he had no right to suffer a decree in favour of the defendant/respondent herein. It was stated that the plaintiffs as well as defendant are daughters of Gajjan Singh. It was averred that after the death of Gajjan Singh, the property was to be divided among the five sisters. However, the defendants propounded the aforementioned judgment and decree dated 14.12.1989 to claim her exclusive right over the property in question. It was averred that the said judgment and decree is a result of fraud and misrepresentation and thus prayer was made for decreeing the suit.

Upon notice, defendants denied all the averments and stated that the property is not ancestral and judgment and decree was validly executed in her favour. It was further averred that Gajjan Singh also executed a Will dated 4.8.1996 (Ex. D-4) and as per the said Will also, she has become the exclusive owner in possession of the property left by her father Gajjan Singh.

From the pleadings of the parties issues were framed. Both sides led evidence and after appreciating their evidence learned trial Court decreed the suit of the plaintiff and the findings thereof were reversed by the learned lower Appellate Court, by allowing the appeal filed by the defendants. Hence the present second appeal.

I have heard learned Counsel for the appellants and have also gone through the case file carefully with his able assistance.

Learned Counsel for the plaintiffs/appellants has argued that the learned lower Appellate Court has wrongly allowed the appeal of the defendant/respondent and wrongly dismissed the suit of the plaintiffs/appellants because it is proved on record that the property in question is ancestral property and thus, the alleged judgment and decree suffered by Gajjan Singh is nullity in the eyes of law. It was further argued that it is proved on record that the pleadings in the Civil Suit, which resulted in the judgment and decree dated 14.12.1989 are contradictory in nature and totally incorrect and thus, the reliance placed upon by the learned lower Appellate Court, while deciding the suit against the plaintiffs/appellants, has resulted into miscarriage of justice and on this ground also the findings are liable to be set aside.

After hearing learned Counsel for the appellants and having gone through the case file carefully, this Court is of the opinion that the present second appeal is devoid of any merit and the same deserves to be dismissed. The relationship among the parties is not in dispute at all. What is in dispute is the judgment and decree dated 14.12.1989 which was allegedly suffered by Gajjan Singh in favour of Surjeet Kaur-defendant/respondent herein. It is apparent from the record that to prove the said case, one of the plaintiff namely Surinder Kaur appeared in the witness box. However, the careful perusal of the pleadings as well as the evidence of Surinder Kaur would reveal that material principles of fraud or coercion are missing. Not only this, it is cardinal principle of law that a person who pleads fraud is required to prove the same by bringing on record cogent evidence. However, there is no evidence at all to prove the said fact. It is apparent from the record that Gajjan Singh had filed written statement Ex. P-4 and he further suffered a statement before the Civil Court Ex. P-6 and these documents have not been challenged by the plaintiffs/appellants of having not bearing thumb impression of Gajjan Singh and the court while passing the judgment and decree dated 14.12.1989 had committed any illegality. It is further apparent from the record that Gajjan Singh died on 17.10.1996 and during his lifetime i.e. for over 7 years the impugned judgment and decree was never challenged by him. This fact goes a long way to show the intention of Gajjan Singh to give away his property to defendant/appellant. Not only this, the present suit has been filed after a considerable delay of 9 years and it does not appeal to this Court that the plaintiff/appellants or even the defendant/respondent would stay quite for such a long time and not disclose about the judgment and decree. This fact is further fortified from the revenue record which reflects the name of the defendant right from 1990 as mutation no. 4014 dated 20.03.1990 was sanctioned by the Revenue Authorities on the basis of judgment and decree dated 14.12.1989.

As far as the plea of property being ancestral property is concerned, there is absolutely no evidence at all on record, except for the statement of the plaintiff to prove the nature of the property being ancestral. It is settled position of law that all the properties are considered to be non ancestral in nature until and unless they are proved to be ancestral. This court has no hesitation in holding that the property in question was non ancestral in the hands of Gajjan Singh and he had every right to suffer judgment and decree in favour of defendant/appellant.

No other point was urged before me during the course of arguments. In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.