The court ruled that the plaintiffs failed to prove ownership of the ancestral property through family settlement, and their claims were barred by the principle of estoppel due to prior admissions in litigation.

JUDGMENT :

Deepak Gupta, J.

This appeal is against the concurrent findings of the courts below. In order to avoid confusion, parties shall be referred as per their status before the trial court.

2. Plaintiff No.1 - Baldev Singh (respondent N: 1 herein — since deceased & so, represented by his LRs) is the son of initially impleaded sole defendant Harkesh. Plaintiffs No.2 & 3 i.e. Ashok Kumar and Netrar Pal (respondent N: 2 & 3 herein) are the sons of Baldev Singh i.e. grandsons of the said defendant-Harkesh. Present appellants are pendente lite vendee of the suit property from defendant Harkesh. They were substituted as such in place of defendant before first appellate court.

3.1. As per plaintiffs, parties formed a joint Hindu family, of which the defendant was the Karta. Land measuring 61 kanal 16 marla [2/3 share of the total land] situated in Village Daula, Tehsil and District Gurgaon, detailed in para No.1 of the plaint, is the ancestral property of plaintiffs; whereas, defendant is recorded as owner to the extent of 1/3 share i.e. 31 kanal 6 marla [‘suit land’] in the total land as Karta of the family and so, the same is inalienable.. Plaintiffs alleged that defendant wanted to sell his share without any notice, knowledge or consent of the plaintiffs and without any legal necessary or consideration. Defendant also started interfering in the possession of the plaintiffs over the suit land. With these averments, suit [civil suit N: 950 of 1983] was brought by the plaintiffs on 28.11.1983 seeking a decree of permanent injunction to restrain the defendant from interfering in their possession over the suit land and also from alienating the land to the extent of 1/3rd share in any manner, whatsoever.

3.2. Defendant-Harkesh, though in his initial written statement denied the ancestral nature of the suit property, but in the amended written statement, admitted the ancestral nature of the suit property. He, however, denied that parties to the suit formed joint Hindu family or that he was Karta of any such family. According to him, he is the full-fledged owner of his 1/3rd share in the total land and that he is in cultivating possession thereof without any interference from any side. Controverting other averments in the plaint, he prayed for dismissal of the suit.

3.3. Following issues were framed by the trial Court on 20.11.1984: -

“1. Whether the plaintiff and defendant are members of the joint Hindu family? OPP

2. Whether the suit land is ancestral property of defendant qua plaintiffs in the hands of defendant? OPP

3. Whether the property in dispute is joint Hindu family co-parcenary ancestral property. If so to what effect? OPP

4. Whether the plaintiffs are in exclusive possession of suit land, as alleged? OPP

5. Whether the plaintiff No.1, 2 and 3 are owner to the extent of 2/3rd share? OPP

6. Whether the suit is not maintainable? OPD

7. Whether the plaintiffs have no locus standi to file the suit? OPD

8. Whether the plaintiffs is estopped from filing the present suit by his own act, conduct and acquiescence? OPD

9. Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD

10. Whether the defendant is owner to the extent of 1/3 share in the suit land, if so, to what effect? OPD.

11. Relief.

3.4. An application moved by the plaintiffs for amendment of the plaint was allowed in September, 1986. In the amended plaint, it was pleaded by the plaintiffs that by virtue of family settlement and arrangement, plaintiffs N: 2 & 3 had become owners in possession of suit property i.e., 1/3 share of the defendant. They also prayed for decree of declaration to that effect.

3.5. Learned trial Court of Ld. Additional Senior Sub Judge, Gurgaon vide its order dated 05.01.1987 dismissed the suit by treating issue No.6 as a preliminary issue and by holding that suit was not maintainable. To arrive at such a finding, it was observed that as per the own case of the plaintiffs, suit property was ancestral coparcenary property and as s