Ancestral Property—Admission in other proceedings regarding the nature and character of the property as ancestral would not clothe or change the texture or nature of the property as ancestral.

Mr. Amit Rawal J. (ORAL) - C.M. No.8236-C of 2011 in RSA No.2990 of 2011

C.M. No.8239-C of 2011 in RSA No.2991 of 2011

1. The applications for impleading the legal representatives of deceased-Bachittar Singh are allowed subject to all just exceptions and the legal representatives are ordered to be brought on record.

RSA Nos.2990 and 2991 of 2011

2. The appellants-defendants are aggrieved of the concurrent finding of fact whereby the suit of the respondent-plaintiff Bachittar Singh against his father-defendant Nos.2 and other defendants seeking declaration that the judgment and decree dated 2.4.1990 to be declared as void, illegal, non est, inoperative and not biding upon his rights and liable to be set aside in respect of the land described hereunder:-

(i) Land measuring 66 kanals 12 marlas comprised in khata No.142/196, 197, 198, khasra Nos.2465/845 (min), 2465/845- 925 min, 2470/1606 min, 2465/845-1786, 2470/1606-925, being ½ share of land measuring 133 kanals 4 marlas situated at village Mehmoodpur.

(ii) House as shown red in the site plan attached with the plint and bounded as follows:- East: House of Jagat Singh West:Street North: Street South: property of Pakhar situated at Mehmoodpur.

(iii) House as shown red in the site plan attached with the plaint and bounded as follows:-

East: Street

West:Street

North: House of Ajit Singh & Ors

South: Street situated at village Mehmoodpur.

3. On the premise that the property at the hands of Swaran Singh-defendant No.2 was ancestral/coparcener in nature has been decreed. The plaintiff came to India in December, 1997 and was apprised that defendant No.1 has been recorded as owner of the suit property on the basis of judgment and decree dated 2.4.1990. The aforementioned judgment and decree could not be executed by Swaran Singh being Karta of the family except for legal necessity. Legal necessity was never in existence as having right by birth in the aforementioned property.

4. Mr. Vikas Bahl, learned Senior Counsel assisted by Ms. Samaya Singh and Ms. Japneet Kaur, Advocates submits that the respondent-plaintiff has failed to lead evidence, much less, the Courts below have failed to notice that the documentary evidence brought on record is only with regard to the estate of Ghanaya, father of Swaran Singhdefendant No.2 but not of three generations and the plaintiff being the 4th generation only would have a right by birth. The mutation Ex.P29 and jamabandi Ex.P28 only prove the land in the hands of Ghanaya and not Chetu Ram, great grand father of the plaintiff and therefore, requirements of law as per para 221 of 21st Edition of Mulla Hindu Law, have not been complied with and the Courts below have erroneously set aside the judgment and decree, in essence, the onus has not been discharged, thus, the findings rendered by both the Courts below are liable to be set aside by formulating the substantial questions of law as drawn in the memorandum of appeal.

5. Per contra, Mr. Sandeep Jain, learned counsel appearing for the respondents-plaintiffs submits that the aforementioned documentary evidence Ex.P28, jamabandi for the year 1986-87, Ex.P29, Mutation and Ex.P30, translation of the mutation, irresistibly prove that the property at the hands of Swaran Singh was ancestral. Swaran Singh was Karta of the joint family and he could not have executed a sale deed except for legal necessity as he has right by birth.

6. He further submits that in the previous round of litigation, the appellant-defendant had admitted the nature and character of the property as ancestral and therefore, there is no limitation with regard to the title and objection of the defendant qua limitation has rightly been rejected. He says that the appellant-defendant is estopped to raise such pleas in view of the provisions of Section 115 of the Indian Evidence Act. In support of his contention, he relies upon the judgments of Hon’ble Supreme Court in Gannmai Anasuya and others Vs. Parvatini Amarendra Chowdhary andothers 2007(2)