Sarja Devi and Others vs Ram Mehar and Others

L.N. Mittal, J.

CM No. 2274.C of 2010

For reasons mentioned in the application, delay of 161 days in refiling the appeal is condoned. The application stands disposed of accordingly.

CM No. 2275.C of 2010

For reasons mentioned in the application which is accompanied by affidavit, the application is allowed and delay of 81 days in filing the appeal is condoned.

CM No. 2277.C of 2010

Allowed as prayed for.

RSA No. 823 of 2010

Plaintiffs Sarja Devi and her two daughters having remained unsuccessful in both the courts below have filed the instant second appeal.

Hari Singh defendant No. 5 was owner in possession of the suit land. He had two sons namely Shishpal defendant No. 4 and Dhoop Singh since deceased. Dhoop Singh had two wives i.e. Sarja Devi plaintiff No. 1 and Kamla. Sarja Devi gave birth to two daughters who are plaintiffs No. 2 and 3 whereas Kamla gave birth to three sons who are defendants No. 1 to 3. Defendants No. 4 and 5 were given up in the trial court.

Plaintiffs alleged that Hari Singh in a family partition gave half share of the suit land to Dhoop Singh and the remaining half share to Shishpal defendant No. 4 and they became owners in possession thereof accordingly and after the death of Dhoop Singh, plaintiffs have become owners in possession of half share of the suit land. However, Hari Singh suffered decree dated 19.7.1989 in favour of defendants No. 1 to 3 to the extent of half share of the suit land and in favour of defendant No. 4 to the extent of half share of the suit land and mutation No. 455 dated 27.10.1989 was sanctioned on its basis. The said decree and mutation have been challenged in the suit. Plaintiffs sought declaration that they are owners in possession of the suit land to the extent of half share and defendant No. 4 is owner in possession of the remaining half share of the suit land. The plaintiffs also sought consequential reliefs.

Only defendants No. 1 and 2 contested suit. They denied the plaint allegations. It was pleaded that Hari Singh gave half share of the suit land to defendant No. 4 and the remaining half share to defendants No. 1 to 3 and accordingly, they became owner in possession of their respective shares. It was denied that Hari Singh gave half share of suit land to Dhoop Singh during his life time. It was denied that plaintiffs No. 1 to 3 are owners in possession of the half share of suit land after the death of Dhoop Singh. It was denied that plaintiffs are in possession of any part of the suit land. Decree dated 19.7.1989 and consequent mutation dated 27.10.1989 were pleaded to be genuine and valid. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Hisar vide judgment and decree dated 21.9.2007 dismissed plaintiffs'' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Hissar vide judgment and decree dated 7.10.2008. Feeling aggrieved, the plaintiffs have preferred the instant second appeal.

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

Learned Counsel for the appellants contended that the appellants and respondents No. 1 to 3 being legal heirs of Dhoop Singh are all entitled to half share of Dhoop Singh in the suit land. It was also contended that appellants were not made party to the suit in which consent decree dated 19.7.1989 was suffered by Hari Singh defendant and therefore, the said decree is not binding on the appellants.

I have considered the aforesaid contentions but find no merit therein. Admittedly, Hari Singh was owner in possession of the suit land. It is not even pleaded by the plaintiffs/appellants that the suit land was ancestral or Joint Hindu Family property in the hands of Hari Singh. On the other hand, it stands proved that the suit land was self acquired property of Hari Singh who had purchased it vide sale deeds Ex. D4 and Ex. D5. Consequently, the plaintiffs had no right in the suit land. The plaintiffs have miserably failed to prove that there was any family partition in which Hari Singh gave half share in the suit land to Dhoop Singh predecessor of the plaintiffs. There is concurrent finding by both the courts below that there was no such family partition. There are statements of plaintiffs No. 1 and 2 only regarding the alleged family partition which are not sufficient to prove the same. On the other hand, Dhoop Singh had died in July, 1988 and consent decree was suffered thereafter by Hari Singh on 19.7.1989 and mutation on its basis was also sanctioned on 27.10.1989 whereas the instant suit was filed on 25.3.2003 and therefore, the suit is also hopelessly barred by limitation. Moreover, there is no cogent evidence to depict that the plaintiffs are or ever remained in possession of the suit land or any part thereof. On the contrary, Hari Singh voluntarily suffered consent decree dated 19.7.1989 in favour of defendants No. 1 to 3 to the extent of half share in the suit land (being grand-sons of Hari Singh from his pre-deceased son Dhoop Singh) and in favour of Shishpal defendant No. 4 being other son of Hari Singh. Plaintiffs herein were not required to be made party in the said suit in which decree dated 19.7.1989 was passed because plaintiffs have no right, title or interest in the suit land which was self acquired property of Hari Singh. Plaintiffs have no right to challenge the said decree suffered by Hari Singh.

For the reasons aforesaid, it is manifest that the plaintiffs have no right, title or interest in the suit land and the appeal is meritless. There is no infirmity much less illegality or perversity in the judgments of the courts below so as to warrant interference in the second appeal. Accordingly, the appeal is dismissed.