Shri. Bhim Singh vs Sh. Bhawani Datt and Sh. Narain Singh

Sanjay Karol, J.—This is plaintiff?s regular second appeal filed u/s 100 of the Code of Civil Procedure.

The appeal was admitted on the following substantial questions of law:

Whether an ancestral property without partition and without legal necessity can be sold to be detrimental of other coparceners?

Whether it was not incumbent upon the lower appellate court being final court of fact to have independently weighed the evidence adduced by the parties and considered the material facts and points which arose for adjudication and this bearing of the evidence on those points. Was it not incumbent upon the lower appellate court to have given reasons for the decision on each point, as it was a salutary requirement?

Plaintiff filed a suit for declaration and consequential relief against his brother Sh.Narain Singh (defendant NO.2) who sold his own share in the suit land to Sh. Bhawani Datt (defendant No.1). Plaintiff claimed that the suit land was ancestral and he being minor, without any legal necessity, his real brother i.e defendant No.2 could not have sold the half share in the land to defendant No.1 for the reasons that the property in question was ancestral.

The suit was contested by the defendants and on the pleadings of the parties, following issues were framed:-

Whether the suit land is joint Hindu family, ancestral and coparcenary property? OPP

Whether the sale deed dated 7.9.1993 is illegal, null and void? OPP

Whether the plaintiff is entitled for possession of the suit property? OPP?

Whether the suit is bad for compliance of provisions of order 32 rule 2 and 3 CPC? OPD.

Relief.

Sub Judge, Court NO.3, Mandi dismissed the plaintiff?s civil suit No. 53/98/94 in terms of judgment and decree dated 9-11-1998. The suit property was found not to be a coparcenary property. In fact, joint Hindu family did not exist.

Findings of fact, judgment and decree passed by the trial Court stands affirmed by the District Judge, Mandi in Civil Appeal No. 54 of 1999 titled as Bhim Singh Vers. Bhawani Datt and another in terms of impugned judgment and decree dated 25.2.2002.

Having heard learned counsel for the parties and also perused the record, I am of the considered view that no substantial question of law arises for consideration in this appeal.

There is no dispute with regard to the suit land and share holding of plaintiff and defendant No.2.

Evidence led by the parties evidently shows that the land in question was in fact allotted by the state, by way of a grant in the name of Sh. Tohli father of plaintiff and defendant No.2. Revenue record Ex. PA i.e copy of Jamabandi pertaining to year 1988-1989 clearly establishes this fact. That apart there is no other evidence on record to establish that the property in question was held by the predecessor in interest as a joint Hindu family property or was put in to the hotch potch of the joint Hindu family.

By way of sale deed Ex. PB defendant No.2, has sold only his share in the suit property in favour of defendant No.1.There is no legal bar or impediment in transaction of such sale. Court below has framed a point for consideration and answered the same. As such, concurrent findings of fact recorded by the Court below need not be interfered with. No ground for interference is made out. It cannot be said that the Courts below erred in wholly and fully appreciating the material placed on record by the parties or that correct provisions of law have been either misinterpreted or incorrectly applied or that findings are such, which has resulted into perversity/travesty of justice.

Consequently, the present appeal is dismissed.