MANJIT SINGH Vs. RAJINDER SINGH

JUDGEMENT

(1.) Aggrieved by the judgment and decree dated 23.6.2000 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No. 119-CA/13 of 2000/1999, dismissed thereby the Civil Suit bearing No.68/1 of 1990/T- 23/1/1991 on reversal of the judgment and decree passed by the trial court decreed on 30.3.1999, the appellant, hereinafter referred to as the plaintiff, has approached this Court by filing the present appeal with the prayer to set aside the same.

(2.) The challenge to the judgment and decree impugned before this Court in the present appeal is on the ground, inter-alia, that the land entered in Khata-Khatauni No. 8min/33, Khasra No.491/304, measuring 5 Biswas, situated in village Shamsherpur, Tehsil Paonta Sahib, hereinafter referred to as the suit land, was ancestral and the family consisting of plaintiff and defendants No.2 and 3 being a joint Hindu family, was governed by Mitakshra Hindu law and the findings so recorded by the trial Court were erroneously set aside. According to the plaintiff, since the defendants miserably failed to prove that the suit land was sold to defendant No.1 for legal necessity, therefore, the suit was rightly decreed by the trial Court. However, the decree so passed has been erroneously set aside by the learned lower appellate Court. Further, according to the plaintiff-pappellant, a new case is made out by the learned lower appellate Court by concluding that the suit property was of joint Hindu family but not coparcenary and that the parties were governed by custom and not by Hindu Law. Such findings are stated to be not supported by any evidence and rather self contradictory. Further, according to plaintiff-appellant, the evidence reveals that the suit land was inherited by the father of the plaintiff from his father on death and hence, it was ancestral property for all intents and purposes. As per Sections 6 and 30 of the Hindu Succession Act, the interests of deceased coparcener in coparcenary property have to be inherited under Section 8 of the said Act by his legal heirs, but the learned lower appellate Court has nullified the concept of coparcenary property after 1956. Hence, such findings are stated to be not sustainable. It is averred that all points in issue were not decided by the learned lower appellate Court, as no findings have been returned on the issue of legal necessity. The factum of suit land being inherited by the father of plaintiff i.e. defendant No.2 from his father Shri Rania and during consolidation of holdings came to be allotted to him under different numbers is also stated to have not been properly appreciated. Further, according to the plaintiffappellant, the factum of exchange inter se the brothers could not destroy the ancestral nature and character of land has also been overlooked and the learned lower appellate Court being a Court of fact has failed to consider the oral evidence available on record in its right perspective and also that the application under Order 41 rule 47 CPC has also been erroneously dismissed. The oral and documentary evidence available on record is also stated to be misread and misinterpreted. It is pointed out that from documentary evidence, especially copy of sale deed Ext.P- 15, copy of jamabandi for the year 1949-50 (Ext. P-4), for the year 1953-54 (Ext.P-5), copy of Misal Hakiat for the year 1956-57 (Ext. P6), copies of Mutation Ext.P-13, P-14 and Ext .DB, it is crystal clear that the suit land in the hands of defendant No.2 was ancestral being Karta and hence, he was not competent to alienate the same without legal necessity.

(3.) This appeal has been admitted on the following substantial questions of law: