DHARAM BIR Vs. MAHABIR

JUDGEMENT

(1.) There was one Parbhu son of Kalu. Mahavir, Ramesh and Dharamvir and his sons. Parbhu was owner and in possession of agricultural land measuring 7 bigha in the area of village Kambopura as recorded in jamabandi for the year 1983-84 bearing kliewat No. 61, khatauni No. 97 min, khasra No. 1 12;(3-8), 1125(4-0). In civil suit No. 498 of 1986 filed by Dharamvir against his father Parbhu son of Kalu, Parbhu collusively suffered a decree against him dated 28.7.86 in the Court of Shri M.L. Sharma, Sub Judge, First Class, Karnal whereby he (Dharamvir) was declared owner of land measuring 7 bigha against ParbhU son of Kalu. Mutation No. 904 was sanctioned on 27.10.97 where through land measuring 7 bagha (ibid) was mutated in favour of Dharamvir. Dharamvir got possession of the said land.

(2.) Mahavir and Ramesh sons of Parbhu filed suit for declaration whereby they challenged decree dated 28.7.86 passed by Sub Judge, First Class, Karnal in favour of Dharamvir against Parbhu. It was alleged in the plaint that land measuring 7 bigha was ancestral qua them and Parbhu defendant No. 1. They are Kamboj by caste. They are governed by the agricultural custom of Punjab in matters of alienation. As per agricultural custom of Punjab, ancestral immovable property cannot be alienated by its holder without legal necessity and consideration. It was alleged in the plaint that in case it is proved that they are not governed by agricultural custom of Punjab but they are governed by Hindu Law, even then the said decree is illegal, void, ineffective against the rights of succession of the plaintiffs on grounds viz plaintiffs and Parbhu defendant No. 2 constituted a joint Hindu family of which Parbhu was karta. Land in suit was joint Hindu family/ancestral and co-parcenary property in the hand of Parbhu qua the plaintiffs. Parbhu had no right to alienate joint Hindu family/ancestral/co-parcenary property without consideration, legal necessity and benefit to the joint family. Mahavir and Ramesh sons of Parbhii sought decree for declaration to the effect that the decree dated 28.7.86 alleged to have been passed in favour of Dharamvir defendant by Parbhu defendant was illegal, unauthorised, void and ineffective under custom in the alternative under Hindu law and has no effect on the right of succession of the plaintiffs. By way of consequential relief, they asked for possession also.

(3.) Defendant No. 1 contested the suit of the plaintiff. It was denied that the land in suit was ancestral qua them and Parbhu. It was denied that they are governed by the agricultural custom of Punjab. They are kamboj by caste and they are governed by Hindu law in the matters of alienation. It was alleged that it was a valid decree passed on 28.7.86 against Parbhu in favour of Dharamvir defendant No. 2 by Sub Judge, First Class, Karnal. It was submitted that this land devolved upon Dharamvir at a family settlement. Basis of that decree was family settlement. It was denied that any fraud was practiced on Parbhu or any undue influence was exercised upon Parbhu by him in the obtaining of that decree. On these pleadings of the parties, the following issues were framed:-