Sarabjit Singh and others vs Om Parkash and others

L.N. Mittal, J.

CM No. 7314-C of 2010

For reasons mentioned in the application, which is accompanied by affidavit, delay of 46 days in re-filing the appeal is condoned.

Main Case

Plaintiffs having failed in both the courts below have knocked the door of this Court by way of instant second appeal.

Plaintiffs in the suit have challenged two sale deeds executed by Darshan Singh-defendant No. 3 dated 19.05.1990 in favour of defendants No. 1 and 2 regarding the suit land. By amendment of plaint, subsequent sale deed dated 02.04.1997 executed by defendant no. 1 in favour of defendant No. 1(A) Raj Singh during pendency of the suit, was also challenged. Sale deed executed by defendant no. 2 in favour of defendants No. 4 to 7 has also been challenged. The plaintiffs are a minor son, a minor daughter and wife of Darshan Singh-defendant No. 3-vendor. The plaintiffs alleged that suit property was ancestral joint Hindu family property in the hands of defendant No. 3, who inherited the same from his forefathers and therefore, plaintiffs have right therein by birth. Defendant No. 3 executed the impugned sale deeds without consideration and legal necessity.

Defendant No. 1(A) and defendant No. 2 contested the suit by filing separate written statements. They denied the plaint averments. They also denied that the suit property was joint Hindu family property. It was alleged that impugned sale deeds are legal and valid. It was also alleged that defendant No. 1(A) is bonafide purchaser of the suit land for consideration. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Ambala City vide judgment and decree dated 24.05.2007 dismissed the plaintiffs'' suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 23.05.2009. Feeling still dissatisfied, plaintiffs have filed the instant second appeal.

I have heard learned counsel for the appellants and perused the case file.

Both the courts below after appreciating the evidence on record have come to concurrent finding of fact that the plaintiffs have miserably failed to prove the suit property to be ancestral property in the hands of vendor-defendant No. 3. No evidence has been led to depict that defendant No. 3 inherited the suit land from his father, grand father or great grand father. Consequently, plaintiffs have been rightly non-suited by the courts below. Learned counsel for the appellants could not refer to any evidence to depict that the suit land was ancestral or joint Hindu family property in the hands of defendant No. 3 qua the plaintiffs. It may be added that even the impugned sale deeds have not been placed on record. However, the plaintiffs have to fail primarily because they have failed to prove the suit property to be joint Hindu family property. Consequently plaintiffs had no right, title or interest in the suit land. Resultantly plaintiffs also have no locus standi to challenge the impugned sale deeds.

There is no perversity or illegality in the finding of the Courts below non-suiting the plaintiffs. The said finding is not shown to be based on misreading or misappreciation of evidence so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. On the other hand, both the courts below have arrived at pure finding of fact that the plaintiffs have failed to prove that suit land was ancestral or joint Hindu family property in the hands of defendant No. 3. It is thus manifest that there is no merit in the instant second appeal, which is accordingly dismissed in limine.