Point of Law: Prohibition or bar contained in proviso to Section 34 of 1963 Act determines maintainability of a suit and that issue has to be tested on basis plaint is framed.

JUDGMENT :

Jyotsna Rewal Dua, J.

Learned trial Court as well as learned first appellate Court vide their respective concurrent judgments dated 28.03.2005 and 30.11.2005 decreed the civil suit instituted by the respondent-plaintiff. The defendants have assailed these judgments and decrees in this regular second appeal.

2. The civil suit was filed by the respondent/plaintiff seeking declaration that a gift deed dated 14.08.1981 (Ex.PW-1/A) executed by his father/deceased Faquir Chand in favour of plaintiff’s brother-Narender Nath (defendant No.1) in respect of the suit land was null and void. Suit property was ancestral in nature and, therefore, Faquir Chand was not competent to execute the gift deed. The ancestral property could not have been alienated by Faquir Chand without the consent of the plaintiff-a coparcener. Mutation attested on the basis of this gift deed is also not valid. After execution of the gift deed, defendant No. 1 Narender Nath sold his 1/3rd share in the suit property in favour of defendant No. 2- Rajesh Kumar. This alienation is also void.

Both the learned Courts below determined the nature of suit property as ancestral. On the basis of oral & documentary evidence on record, factual findings were returned that suit property was inherited by one Pritam from his father Mansia. From Pritam, the property passed on by inheritance to his son Faquir Chand. Plaintiff & defendants are children of Faquir Chand. Suit property in the hands of Faquir Chand being ancestral could not have been gifted by him in favour of defendants without plaintiff’s consent. Hence, gift deed dated 14.08.1981 was declared void. Mutation attested on the basis of gift deed was held invalid. Subsequent sale of his share (1/3rd) in the property by defendant No. 1 in favour of defendant No. 2 was held to be illegal.

3. This second appeal filed by the defendants was admitted on 13.01.2006 on the following substantial questions of law :-

“1. Whether the suit of the plaintiff was barred under Article 59 of the Limitation act and as such was not maintainable ?

2. Whether the learned Court was right in holding that the suit property was ancestral property ?

3. Whether the learned Court below was right in holding that a suit for declaration is maintainable without seeking the relief of possession qua the suit property ?

4. Whether the learned Court below has arrived at a wrong conclusion in holding that the defendant No. 1 was not in adverse possession of the suit property uninterrupted since 14.08.1981 ?”

4. Heard Shri Anand Sharma, learned Senior Counsel assisted by Sh. Karan Sharma, Advocate for the appellants/defendants and Sh. Suneet Goel, learned counsel for the respondent/plaintiff. For convenience, separate point-wise discussion is as under :-

4 (a) Nature of Suit Property

Both the learned courts below have held the suit property to be ancestral property. It has not been disputed that plaintiff and defendants No. 1 & 2 are sons of late Faquir Chand. Defendant No. 3 is the daughter & defendant No. 4 is the widow of late Faquir Chand. Parties are governed by Mitakshara law. Suit property measures 1 bigha 18 biswas of land, comprised in Khasra No. 19, situated in village Jayara, Tehsil & District Solan, H.P. The documents on record reflect that this property was originally owned by one Mansia. After the death of Mansia, the suit property was inherited by Mansia’s son Pritam Chand. After the death of Pritam Chand, the suit property was inherited by his son Faquir Chand. Faquir Chand died in the year 1986. The said property was not self acquired property of Faquir Chand but was inherited by him from his father Pritam Chand. The nature of property was ancestral. Therefore, I do not find any error in the factual finding recorded by both the learned Courts below that the nature of the suit property in the hands of Faquir Chand was ancestral. In fact, leav