The legal necessity, welfare of the family, and benefit of the estate can justify the alienation of ancestral property, and failure to challenge a sale deed earlier may bar subsequent relief.

DAYA CHAUDHARY, J.

CM No. 6661-C of 2017

1. There is delay of 54 days in filing of the appeal.

Application is allowed as per the grounds mentioned therein and delay of 54 days in filing of the appeal is condoned.

RSA No. 2682 of 2017

2. Appellant-plaintiff-Gurpreet Singh @ Baljeet Singh filed a suit for declaration stating that he is owner to the extent of 11/30th share in the land i.e., 1/5th share being inherited from his father late Sh. Mansa Singh and 1/6th share in the ancestral coparcenary land from the date the plaintiff was born as coparcener in the Joint Hindu Family, by virtue of his birth. Said suit was contested by defendants by way of filing written statement and it was partly allowed only to the extent of relief of mandatory injunction by allowing him to use water for irrigation from the tube well installed in the joint land and the tractor, which was part of joint property was also granted. However, the remaining relief i.e., the relief declaring share, validity of sale deed dated 05.06.2003, possession by way of partition and permanent injunction against alienation etc., was declined vide judgment and decree dated 15.09.2014.

3. Said judgment and decree dated 15.09.2014 was challenged by way of filing appeal before Ld. Additional District Judge, Chandigarh, which was also dismissed vide judgment and decree dated 28.11.2016.

4. After losing the case before both the Courts below i.e., the trial Court as well as the lower Appellate Court, the present second appeal has been filed by raising various grounds.

5. Learned counsel for the appellant submits that the property in dispute is the ancestral property and it cannot be sold by the Karta except for legal necessity. There was no evidence that there was any legal necessity as nothing was produced by the respondents-defendants to justify the alleged sale of property vide sale deed dated 05.06.2003. Learned counsel further submits that the lower Appellate Court has committed a wrong while affirming the judgment and decree passed by the trial Court and it has not been considered that Phuman Singh expired on 20.10.2012, the relief in the first appeal was not premature and as such, both the Courts below should have decreed the suit filed by the appellant-plaintiff. Learned counsel also submits that the suit was for declaration and possession by way of partition as well as for injunction. The appellant-plaintiff was having interest because of joint property and to avoid further alienation without legal necessity by Karta or other co-sharers. At the end, learned counsel for the appellant submits that both the judgments/decrees of trial Court as well as the Lower Appellate Court are liable to be set-aside.

6. Heard arguments of learned counsel for the appellant and have also perused the judgments of both the Courts below as well as other documents available on the file.

7. The facts relating to filing of suit by the plaintiff-appellant, its dismissal, filing of appeal and dismissal thereof are not disputed.

The following issues were framed by the trial Court : -

1. Whether the plaintiff is entitled for declaration that he is owner to the extent of 11/30 share in land fully described in the head note of the plaint ? OPP

2. If issue No.1 is proved whether the plaintiff is entitled for possession of above said land by way of partition by metes or bound ? OPP

3. Whether the plaintiff is entitled for permanent injunction restraining the defendants, their family members and agents from alienating the suit land ? OPP

4. Whether the plaintiff is entitled for mandatory injunction for allowing him to use the water for irrigation of the land from tube-well installed in the suit land and tractor Escort No. 377 CH-01-J-6340 ? OPP

5. Whether the suit is not maintainable as per Order 2, Rule 2 CPC ? OPD

6. Relief.

The finding recorded by the trial Court is as under :-

"11. The onus to prove issue No.5 was upon the defendant. The plaintiff in the present case has sought declaration that the sale d