JASPAL SINGH Vs. BAL KISHAN

JUDGEMENT

(1.) CHALLENGE herein is to the judgment and decree dated 16.05.2001 passed by learned Additional District Judge, Solan, camp Court at Nalagarh in Civil Appeal No. 73 -NL/130 of 2000, whereby the judgment and decree passed by learned Sub Judge, Nalagarh, District Solan in Civil Suit No. 229/1 of 1996 has been affirmed and the appeal dismissed.

(2.) THE plaintiffs are in second appeal before this Court. The bone of contention in the present lis is the land measuring 2 kanals 17 marlas entered in Khewat Khatauni No. 97min/100min, bearing Khasra No. 269 situated in village Ranguwal, Tehsil Nalagarh, District Solan (hereinafter referred to as the suit land). The suit land was in the hands of Suba, the great grand father of the plaintiffs being joint Hindu and coparcenary property during his lifetime. Said Sh. Suba purchased land measuring seven bighas four biswas bearing Khasra Nos. 468, 475 and 476 and one bigha seven biswas bearing Khasra No. 480 from one Shibu of the same village in a sum of Rs. 300/ - vide sale deed 29 Asauj 1982 B.K. Daya Ram was survived by defendant No. 6 Dayal Chand (father of plaintiff No. 1) and defendant No. 7 Sita Ram (father of plaintiffs No. 2 and 3) and his widow Smt. Devki, defendant No. 5. Sh. Daya Ram, grand father of the plaintiffs inherited the estate of Suba aforesaid to the extent of half share including the land aforesaid, he purchased from Sh. Shibu. Later on, partition of the estate inherited by Suba in village Rajpura and Ranguwal alongwith his brother Daulat Ram had taken place. Sh. Daya Ram aforesaid became owner of the suit land. Defendants No. 6 and 7 born to Daya Ram aforesaid acquired interest in the suit land by birth as co -parceners in the Joint Hindu Family property in the hands of said Sh. Daya Ram. Plaintiff No. 1 was born on 14.05.1968 to Dayal Chand, defendant No. 6 i.e. during the lifetime of Dayal Chand, who died in the year 1973. Therefore, he was one of the coparcener so far as the suit land is concerned, right from the time when his grand father Daya Ram was alive. The suit land on the death of Daya Ram vested by way of survivorship with plaintiff No. 1 and his father Sh. Dayal Chand, uncle Sita Ram, father of plaintiffs No. 2 and 3 under Section 6 of the Hindu Succession Act, 1956. Irrespective of execution of Will under Section 30 of the Hindu Succession Act by Daya Ram aforesaid in favour of his two sons, defendants No. 6 and 7 to the extent of half share each. The undivided interest of all co -parcenars i.e. defendants No. 6 and 7 and plaintiff No. 1 remained intact, being surviving co -parcenars. Plaintiffs No. 2 and 3 born in the year 1975 and in the year 1986 also constitute co -parcenary with plaintiff No. 1 and defendants No. 6 and 7. Defendants No. 6 and 7, however, without any legal necessity sold the suit land to Sh. Waryam Singh, predecessor -in -interest of defendants No. 1 to 5 in a sum of Rs. 2500/ -. The suit land being ancestral and co -parcenary property could have not been alienated by way of sale without legal necessity. The alienation of the suit land by defendants No. 6 and 7 in favour of deceased Waryam Singh has, therefore, been claimed to be wrong and illegal hence not binding on the plaintiffs. They requested the defendants to admit their rights and interest in the suit land being co -parcenars, but of no avail. Therefore, they filed the suit for possession of the suit land and also the relief of permanent prohibitory injunction restraining defendants No. 1 to 5 from alienating the suit land in any manner whatsoever.

(3.) DEFENDANTS No. 6 and 7 in the separate written statement have admitted the case of the plaintiffs, as set out in the plaint and while admitting the alienation of the suit land in favour of deceased Waryam Singh, they came forward with the version that said Sh. Waryam Singh was their friend and also the man of confidence. He prevailed upon them and managed the execution of sale deed of the suit land in his favour without any legal necessity. The consent of plaintiffs was not obtained nor any sanction of the Court sought to alienate the suit land to said Sh. Waryam Singh.