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2019 Supreme(P&H) 2153
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Amit Rawal, J.
Suraj Kaur - Appellant
Versus
Ved Parkash And Others - Respondent
RSA-5840-2017 (O&M), and RSA-2059-2018 (O&M)
Decided On : 16-05-2019
Mr. Abhinav Sood, Advocate for the Appellant in RSA-5840-2017.; Mr. Manish Mehta, Advocate for the Appellant in RSA-2059-2018 and for the Respondent No.l in RSA-5840-2017.
The central legal point established in the judgment is the requirement to establish the lineage and generational rights in ancestral property, as well as the correct application of relevant legal provisions such as the Haryana Ceiling of Land Holdings Act, 1972.
Headnote:
Ancestral Property - Property Rights - Haryana Ceiling of Land Holdings Act, 1972 - 221, 21st Edition of Mulla's Hindu Law - The court discussed the nature and character of the property as ancestral, the provisions of Haryana Ceiling of Land Holdings Act, 1972, and the legal requirements for property to be considered ancestral. The court highlighted the importance of establishing the lineage and generational rights in ancestral property, and the implications of the 1972 Act on the property in question.
Fact of the Case:
The case involved a dispute over the nature and ownership of a property claimed to be ancestral by the children of the defendant. The trial court dismissed the suit, but the lower Appellate Court held the property to be ancestral and referred the matter to the Collector for an inquiry. The appellant-defendant challenged this decision.
Finding of the Court:
The court found that the lower Appellate Court had erred in its findings regarding the nature and character of the property as ancestral. It held that the evidence presented did not establish the property as ancestral and set aside the lower Appellate Court's judgment, restoring the trial court's decision to dismiss the suit.
Issues: The main issues revolved around the nature and character of the property, the applicability of the Haryana Ceiling of Land Holdings Act, 1972, and the validity of the lower Appellate Court's decision to refer the matter to the Collector.
Ratio Decidendi: The court's decision was based on the lack of evidence establishing the property as ancestral, the misapplication of the 1972 Act, and the erroneous findings of the lower Appellate Court. It also emphasized the importance of establishing generational rights in ancestral property as per legal provisions.
Final Decision: The court allowed the appeal of the appellant-defendant, dismissed the appeal of the appellant-plaintiff, and set aside the lower Appellate Court's judgment, thereby dismissing the suit of the respondent-plaintiff.
JUDGMENT
Amit Rawal, J. (Oral) - This order of mine shall dispose of two regular second appeals bearing RSA No.5840 of 2017 titled as "Suraj Kaur V/s Ved Parkash and others" filed at the instance of appellant-defendant No.l and RSA No.2059 of 2018 titled as "Ved Parkash V/s Suraj Kaur and others" filed at the instance of appellant-plaintiff, as both the appeals have arisen out of the common Civil Suit No.552 of 2007 titled as "Ved Parkash and others V/s Smt. Suraj Kaur and others" for declaration with consequential relief of permanent injunction seeking restraint qua alienation of the property.
2. The children of defendant No.l-Suraj Kaur, claimed declaration of ownership asserting the right in the property to be ancestral by challenging the sale deed dated 30.09.1969, executed by the father, being husband of defendant No.l.
3. It was alleged that their father-Rameshwar Dayal, inherited the property from Chanderbhan and Khayali, therefore, they being 4 th generation in lineage, had the right by birth. The sale deed was without legal necessity.
4. Defendant No.l-Suraj Kaur, denied the nature and character of the property to be ancestral and alleged that it was self acquired property of her husband and acquired the ownership by virtue of the sale deed, which was out of love and affection, being a Hindu wife and had become the full owner.
5. The plaintiffs brought on record numerous documents i.e. revenue record to establish the nature and character of the property as ancestral i.e. Ex.Pl to Ex.P19.
6. The trial Court on the basis of the evidence brought on record dismissed the suit. The appeal was filed by the plaintiff and the lower Appellate Court, though without noticing the revenue record, held the property to be ancestral, but dismissed the suit and also sent the case to the Collector for holding an enquiry against defendant No.l and appellant in RSA No.5840 of 2017, in order to prevent the declaration of the land as surplus at his hands, executed the sale deed ibid, without any consideration.
7. Mr. Abhinav Sood, learned counsel appearing on behalf of appellant-defendant No.l, in RSA No.5840 of 2017, submitted that the lower Appellate Court has committed legality and perversity in referring the matter to the Collector and holding the property to be ancestral as the plaintiffs have miserably failed to prove the devolution from Khayali Ram in favour of Chanderbhan, grandfather of the plaintiff. There is no evidence declaring the land surplus, even the provisions of Haryana Ceiling of Land Holdings Act, 1972 (in short 'the 1972'), have not been taken care of. Reference to the Collector is wholly fallacious and perverse.
8. Notice of motion in RSA No.5840 of 2017.
9. Mr. Manish Mehta, Advocate, who is present in Court, accepts notice on behalf of respondent No.l, being contesting respondent.
10. Mr. Manish Mehta, learned counsel appearing on behalf of respondent No.l in RSA No.5840 of 2017 and for the appellant in RSA No.2059 of 2018, submitted that the lower Appellate Court had formed an opinion qua nature and character of the property as ancestral, but erroneously non-suited the plaintiff, on the ground of delay as they had the knowledge of the sale deed much prior to sale. The defendants had not challenged the findings of property being ancestral in nature. Ex.P4 and Ex.P7, reflect the devolution of interest on the basis of succession in favour of Rameshwar Dayal from his father Chanderbhan son of Khayali Ram. There was already a family settlement amongst the members, wherein the defendant had agreed for equal distribution amongst the children.
11. In rebuttal, Mr. Sood, submitted that even, in the absence of specific challenge to the findings, in the appeal preferred by appellant-defendant No.l, the provisions of Order 41 Rule 33 of the Code of Civil Procedure, can be pressed into service. I have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submissio
