HARDIAL SINGH @ GURDIAL SINGH Vs. JOGINDER SINGH

JUDGEMENT

(1.) THIS appeal was filed on 8th November, 2012 and came up for hearing, for the first time, on 15th November, 2012 when the learned counsel made a request for an adjournment and the matter was posted to 10th December, 2012. It has since then remained pending preliminary hearing. The appeal was filed with an application under Section 5 of Limitation Act, 1963 for condoning the delay of 137 days in filing the appeal. In the application, it is pleaded that the appellant is a poor person and his financial inability kept him from approaching the Court in time. He is an illiterate farmer who earned his livelihood by doing labour work.

(2.) THE appellant is the plaintiff in the suit. He filed a suit for declaration claiming that the suit property is ancestral joint Hindu co - parcenary family property purchased in lieu of land sold by his father Lal Singh son of Gulab Singh. Parties are sons of Lal Singh and it was claimed that all constituted a joint Hindu family property. It was pleaded that Lal Singh settled the properties within the family by a settlement dated 17th May, 2003. On the death of Lal Singh, five sons of Lal Singh, one of whom is the plaintiff entered possession of land measuring 3 Bighas 16 Biswas divided in 5 shares for his 5 sons and one for himself each comprising 1 bigha 4 biswas 5 biswasies of land. They claimed that they are owners in exclusive possession of their respective shares which wer not open to be disturbed by the defendants who had needlessly begun to cloud their rights and try to disturb them which had compelled the plaintiff to institute the suit claiming exclusive possession under the settlement. The alleged family settlement is an unregistered document and the same is not admissible in evidence since the family settlement works like a memorandum of partition as held by the learned trial Court read when he read the settlement and thought that the same to be worded as a partition deed but not a memorandum of settlement seeking to declare and distribute the different interests in possession of immovable property.

(3.) THE defendant contested the suit and inter alia urged that the plaintiff in the suit sought declaration with respect to specific khasra numbers and since the land had not been partitioned by decree, specific khasra numbers could not be allotted to the respective shares, the khata being joint. The Court arrived at the conclusion that there no partition had taken place with respect to khasra numbers, since khasra numbers were not mentioned therein. The Court found nothing on record to suggest that the suit property was ancestral joint Hindu family co -parcenary property of the parties litigating. It was the case of the plaintiff that the suit property was purchased by Lal Singh after he sold his land in village Norangwal, District Ludhiana. No documentary evidence was adduced on record that the money obtained from the sale of land in village Norangwal was applied towards purchase of the suit property. There was no evidence linking the two transactions. On these premises, learned Additional Civil Judge [Senior Division], Dhuri concluded that the ancestral nature of the property was not proved and, therefore, it followed that the property was self -acquired property of Lal Singh. Therefore, relief was inadmissible. The suit was dismissed on 6th April, 2009.