Joga Ram vs Smt. Kreshani Devi and others

Paramjeet Singh, J.—This regular second appeal filed by plaintiff is directed against the judgment and decree dated 07.10.2011 passed by learned Additional District Judge, Kurukshetra, whereby the appeal preferred by respondent/defendant No. 2 has been accepted, judgment and decree dated 22.12.2009 passed by learned Civil Judge (Junior Division), Pehowa, has been set aside and suit for declaration with possession and permanent injunction as consequential relief filed by appellant/plaintiff has been dismissed.

For convenience sake, reference to parties is being made as per their status in the civil suit.

The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that land measuring 1 bigha 6 biswas (2 kanal 3 marlas) being 26/306 share out of total land measuring 15 bighas 6 biswas comprised in khewat No. 99, khasra No. 498, 500, 501, 504, 505, total kittas 5, situated within the revenue estate of village Lohar Majra, Tehsil Pehowa, District Kurukshetra, vide jamabandi for the year 2000-2001 and vide registered sale deed No. 1527 dated 27.06.2005 was earlier owned by Tidu, the great grandfather of plaintiff, along with others. The suit land is joint Hindu Family Ancestral Property and the plaintiff is the coparcener in the same and has a right in the suit property by birth. Defendant No. 1, father of the plaintiff, being a person of bad habits, sold the above mentioned land to defendant No. 2 for a consideration of Rs. 78,000/- on 27.06.2005. The land in question is a better portion of the land and its value is not less than Rs. 2 lacs. Defendant No. 2 is threatening to alienate the suit property further to some stranger, which can cause irreparable loss and injury to the plaintiff. It is further averred that an oral family settlement was entered into between the plaintiff and defendant No. 1 whereunder defendant No. 1 assured to transfer the share of plaintiff in his name but he failed to do so. As a result of it, a suit for declaration and permanent injunction was filed by the plaintiff against defendant No. 1 and another, which was dismissed in default. It is averred that sale deed is illegal, null and void and not binding on the rights of the plaintiff. Hence, the suit in question was filed.

Upon notice defendants appeared and filed separate written statements taking various preliminary objections. On merits it was averred that suit land is not Joint Hindu Family Ancestral property and the plaintiff has no concern with the suit land rather at the time of sale deed, defendant No. 1 was the owner of the suit land and the sale deed is genuine one. It was averred by defendant No. 2 that father of the plaintiff was a spendthrift and indulged in so many bad vices and the suit in question has been filed just to harass the defendants. Defendant No. 1 sold the land measuring 2 kanals 13 marlas with free consent to defendant No. 2 in the presence of the witnesses. No family settlement had ever taken place between the plaintiff and defendant No. 1. It is further averred that defendant No. 1 was fully competent to execute the sale deed. All other averments made in the plaint were denied and prayer for dismissal of suit was made.

Court of first instance, on the basis of pleadings of the parties, framed following issues:-

Whether the sale deed no. 1527 dated 27.6.2005 executed by the defendant no. 1 in favour of the defendant no. 2 in respect of the suit land is illegal, null and void? OPP

Whether the plaintiff is entitled to a decree for possession as prayed for? OPP

Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff have no locus standi and cause of action to file and maintain the present suit? OPD

Whether the plaintiff has concealed the true and material facts from the court? OPD

6-A Whether the suit of the plaintiff is bad for want of court fees as alleged? OPD

Relief.

The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiff. Against the judgment and decree of the Court of first instance, appeal preferred by defendant No. 2 has been accepted, judgment and decree of the Court of first instance has been set aside and suit of the plaintiff has been dismissed by lower appellate Court. Hence, this second appeal.

I have heard learned counsel for the appellant and perused the record.

Learned counsel for the appellant submitted that following substantial questions of law, formulated in the grounds of appeal, arise for consideration:-

Whether the judgment and decree passed by learned Additional District Judge is based on misreading the facts of the case and evidence on record?

Whether the Joint Hindu Family property can be alienated without legal necessity and without the consent of the coparcener?

Whether the judgment and decree passed by learned Additional District Judge is liable to be set aside?

Learned counsel for the appellant vehemently contended that the judgment and decree passed by lower appellate Court is based on misreading the evidence on record. The lower appellate Court has mis-appreciated the evidence in holding that the property in dispute is not ancestral property in hands of father of plaintiff i.e. defendant No. 1. The well-reasoned judgment and decree of the Court of first instance has wrongly been reversed.

I have considered the contentions raised by learned counsel for the appellant.

Appellant/plaintiff has failed to point out any evidence on record what to say material evidence to prove the ancestral nature of the property. Thus, the lower appellate Court, after appreciating evidence on record, has rightly held that due to lack of cogent evidence property cannot be held to be ancestral. There is nothing on record to show that Mangal misused his position of "karta" and after selling 2 kanals 3 marlas of land vide sale deed (Ex. P1) he misused the sale proceeds. Plaintiff has admitted that his father had constructed a house in village Umri. Thus sale of land was for betterment of the family. Respondent No. 2 has been held to be bonafide purchaser for consideration. The findings with regard to the nature of ancestral property and bona fide purchaser are findings of fact.

Learned counsel for the appellant has failed to show that the findings of fact recorded by lower appellate Court are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.

I do not find any illegality of perversity in the impugned judgment and decree passed by lower appellate Court.

In view of above, no question of law, muchless substantial question of law, as claimed, arises in the present appeal.

No other point has been urged.

Dismissed in limine.

No costs.