YUGRAJ SINGH Vs. HARBANS SINGH

JUDGEMENT

(1.) THE plaintiffs are in second appeal.

(2.) BEFORE adverting to the facts of the case, the pedigree table is required to be noticed : 207717

(3.) THE plaintiffs in support of their case examined Narinder Kaur as PW1, Beant Singh as PW2, Waryam Singh as PW3 and tendered documents Ex. P1 to Ex. P8 before closing their evidence. The defendants examined Harbans Singh as DW1 and tendered copy of mutation dated 23.7.1975 as Ex. D1 and closed their evidence. The trial Court after considering the evidence, decided issues No. 1 to 5 against the plaintiffs and dismissed the suit of the plaintiffs vide judgment and decree dated 29.10.2005. The plaintiffs then filed the first appeal which again has been contested by defendants No. 1 to 4 whereas service upon remaining respondents was dispensed with. The learned lower Appellate Court found that Harbans Singh had two sons, namely, Kulwant Singh and Ram Singh. The property in dispute was received by Harbans Singh from his father Kishan Singh by way of Will dated 6.1.1975 on the basis of which mutation Ex. D1 dated 23.7.1975 was sanctioned. However, it was found that appellants have failed to prove that the property in dispute is ancestral and jamabandis Ex. P1 to Ex. P6 could not prove that the property recorded in the name of Kishan Singh was received by him through his fore-fathers. It was also observed that even if the issue with regard to Will has not been framed yet PW1 Narinder Kaur in her cross-examination has admitted that Kishan Singh had executed a Will dated namely Harbans Singh, Dhira Singh and Jeet Singh. Similarly PW2 Beant Kaur and PW3 Waryam Singh did not deny the Will. Thus, it was held that question of framing of issue with regard to Will was not material. In respect of the relief of possession by way of partition, learned lower Appellate Court has held that even if it is presumed that the land in dispute is ancestral and is in the hands of the Karta (respondent No. 1) grand father of appellant No. 1 then in view of the decision of this Court in Raghbir Singh v. Dalip Singh and another, 2004(2) R.C.R.(Civil) 595 : 2004(2) Civil Court Cases 649, suit for partition during the life time of father/karta is not maintainable. The learned lower Appellate Court had also relied upon the law laid down in the case of Sitara Lal v. Shiv Kumar and others AIR 1986 (P&H) 112. Insofar as right of Karta to alienate the co-parcenary property is concerned, learned lower Appellate Court relied upon Lal Dass v. Raghbir Dass, 2003(4) R.C.R.(Civil) 415 : 2003 (3) Civil Court Cases 578 wherein it has been held that if the property is sold by Karta, no injunction can be granted and only course open is to challenge the alienation on the ground of act of bad management. Resultantly, both the Courts below have dismissed the suit of the plaintiffs.