MEHAR SINGH Vs. FAQIR CHAND

JUDGEMENT

(1.) PLAINTIFFS Mehar Singh and Rattan Lal remained unsuccessful both in the trial Court and in the First Appellate Court, have filed the present regular second appeal and it has been directed against the judgment and decree dated 29. 8. 1991 passed by Additional District Judge, Ambala who affirmed the judgment and decree dated 28. 9. 1987 passed by Sub Judge II Class, Jagadhri by which the suit of the plaintiffs for declaration was dismissed.

(2.) BRIEF facts of the case are that plaintiffs Mehar Singh and Rattan Lal are the real brothers of Faqir-defendant No. 1. They are the sons of Chhajju Ram-deceased who was impleaded as defendant No. 2 in the trial Court. The land measuring 23 Kanals 2-1/3 marlas detailed in the head note of the plaint was allegedly the ancestral property in the hands of defendant No. 2 vis-a-vis plaintiffs and defendant No. 1. The plaintiffs alleged that they are Saini by caste which is predominantly agricultural tribe of Haryana. According to the custom prevalent in that caste, no person can dispose of the ancestral property except for consideration and legal necessity. Defendant No. 2 was spent thrift person. He started wasting the property. The wife of defendant No. 2 and the present plaintiffs earlier filed suit No. 247 of 1974 against defendant No. 2 for permanent injunction restraining him from wasting and alienating the property standing in his name. In that suit, the defendant No. 2 Chhajju Ram deceased gave an undertaking that he would not alienate any part of the suit property in-any-manner and inspite of that collusively and secretly suffered a decree in respect of the suit land in favour of defendant No. 1 on 8. 5. 1994 alleging that the suit property fell to the share of defendant No. 1 in a family settlement. The plaintiffs alleged in the present suit that the said decree dated 8. 5. 1994 in favour of defendant No. 1 is void and ineffective. No such family arrangement was permissible because the parties are governed by customary law. Defendant No. 2 could not suffer a decree without impleading the plaintiff is as a party to the suit. The decree dated 8. 5. 1984 is actually a transfer of the land by defendant No. 2 in favour of defendant No. 1 and this mode of transfer is not recognised by the Transfer of Property Act. The said decree has been suffered by defendant No. 2 in breach of the undertaking given by him.

(3.) DEFENDANT No. 2 also filed a separate written statement and took the similar plea as that of defendant No. 1.