HEM RAJ Vs. SONA SINGH

JUDGEMENT

(1.) The question that falls for determination in this second appeal by the unsuccessful plaintiffs is fairly simple. Hem Raj, Birbal Dass and Kaur Chand plaintiffs (now appellants) filed the suit for possession of the property in dispute against the defendants-respondents on the ground that their father Budh Ram, defendant No. 13, constituted a joint Hindu family with them and the land in dispute was property of the said joint Hindu family and that their father being a spendthrift sold away the property in question in favour of defendants 1 to 11 without consideration and legal necessity and without any benefit to the joint Hindu family, and, therefore, the sale was not binding on the plaintiff-appellants. The suit was contested by defendants 1 to 11 who controverted the allegations in the plaint. It was further pleaded by them that defendant No. 13 did not constitute a joint Hindu family with the plaintiffs and that the suit property was not the joint Hindu family property, and further that the sale was effected for consideration and legal necessity and as an act of good management. It was also alleged that the suit was collusive, the plaintiffs being the sons of the vendor, defendant No. 13. The parties contested on the following issues :-

(2.) The only question for determination in this appeal is whether the property in dispute is ancestral and the appellants and respondent No. 13, their father, constitute a joint Hindu family ? The facts are not disputed. The plaintiff-appellants are the sons of Budh Ram vendor, defendant No. 13, and they allege that the father of Budh Ram, i.e. their grandfather, Saundha, and the latter's brother Raunki were occupancy, tenants, and on the death of Saundha, his occupancy rights devolved on Budh Ram, being his son. Budh Ram thereafter exchanged his occupancy rights in that land with the occupancy rights held by Gurdwara Jand Sahib, in the land, and that after the aforesaid exchange of occupancy rights in the two lands, the proprietary rights in the land held by Budh Ram matured into full ownership by virtue of the provisions of section 3 of the Patiala and East Punjab States Union Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954 (Act No. 18 of 1954) (hereinafter called the Act). The contention of the learned counsel for the appellants is that since the occupancy rights were inherited by the father of the plaintiff-appellants from his father Saundha, therefore, the land in dispute was ancestral and a coparcenary property and thus constituted a joint Hindu family property. This argument is without any merit. Under section 3 of the Act, the occupancy rights of Budh Ram merged into the proprietary rights and he became full owner of the land in dispute for the first time from the date of the enforcement of the Act. The land in dispute thus becomes his self-acquired property and cannot be treated as ancestral in his hands. The same view was taken by me in Smt. Harbhaji v. Kare and others, 1977 PunLJ 66 R.S.A. No. 1409 of 1964, decided on January 29, 1976 ). Reference may also be made to Faqiria and others v. Mst. Rajo and another, 1956 58 PunLR 194 wherein it was held as under :-

(3.) No other point has been urged by Mr. Majithia.