JUDGMENT

Mr. Sanjay Vashisth, J. (Oral)

CM-3140-C-2020

This is an application filed under Order 22, Rule 4 read with section 151 CPC and under Rule-1, Chapter 1-C, volume 5 of HIGH COURT RULES & Orders, for seeking leave to implead the LRs of respondent No.2 - Mahavir Parsad.

In view of the averments made in the application, which is supported by an affidavit of appellant, prayer made in the application is allowed. Resultantly, legal representatives of defendant No.2, as detailed in para No.3 of the application are hereby impleaded as LRs/respondents in the present appeal.

CM stands disposed of.

RSA-961-2020 (O&M)

By way of present Regular Second Appeal (RSA), against the concurrent finding of facts given by both the Courts below, plaintiff - Hitender (appellant herein), submits that the Courts below have not taken note of the fact that sufficient evidence is available on record to hold the fact that appellant (plaintiff) is in possession of the house in question.

2. Plaintiff - Hitender filed a suit for declaration and permanent injunction in regard to a residential House No.3474/1, Modal Town, Jhansa Road, Thanesar, District Kurukshetra, against Kamlesh Rani (defendant No.1) and Mahavir Parsad Rohila (defendant No.2), claiming it to be a Joint Hindu Family property, which is registered in the name of father of plaintiff (defendant No.2). It is pleaded that defendant No.2 sold-out said house to defendant No.1 vide impugned sale-deed No.2316, dated 13.05.2011 being Karta of Joint Hindu Family. In fact, at the time of execution of the sale-deed of the house, there was no legal necessity for the joint family and the house was sold-out without any consideration. Defendant No.2 is claimed to be a habitual drunker and a man of other vices. Thus, plaintiff challenged the said sale-deed being illegal, null & void and claimed consequential decree of permanent injunction.

3. Defendant No.2 filed separate written statement and pleaded that plaintiff has no locus-standi to challenge the sale-deed and clearly denied that the said house was a Joint Hindu Family Property, rather, same was sold-out with consideration and voluntarily by defendant No.2. Thus, he prayed for dismissal of the suit. Defendant No.2 died during the pendency of the suit after filing of the written statement.

4. While deciding issue Nos. 1 to 3, Ld. Trial Court reached to the conclusion that in support of the pleadings, plaintiff has not brought a single document to show that the suit house was purchased by his father i.e. defendant No.2 from any possible nucleus. It is admitted case of the plaintiff that his father (defendant No.2) was in service. It is also not the case of the plaintiff that his father purchased the said house with the aid and help of any ancestral property or with the aid or help of plaintiff's income.

In fact, Ld. trial Court reached to the conclusion that there is no locus-standi with the plaintiff to challenge the alienation done by his father for the self acquired property.

5. Even, it was found by the Ld. trial Court that the possession of the suit house was handed-over to the purchaser (defendant No.1) at the time of execution of the impugned sale-deed itself. Thus, plaintiff also failed to prove his possession over the suit property.

Said finding has also been affirmed by the Ld. Lower Appellate Court. Finding recorded by Ld. Lower Appellate Court in paragraphs No.15 to 18, is reproduced hereunder:-

"15. As per the case set up by the appellant, the suit property is the Joint Hindu Family property but it was registered in the name of his father Mahavir Parshad. Since his father was drunkard and man of vices, therefore, taking advantage of his weaknesses, his son-in-law, Satish Kumar got executed sale deed in