IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on 13^th of November, 2024 Pronounced on 29^th of January, 2025 Regular Second Appeal No.1704 of 1997 (O&M)

Kulwant Rai ....Appellant Versus Satish Kumar @ Mithu and others ....Respondents CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. Rakesh Gupta, Advocate for the appellant.

Respondents No.2, 4 and 6 proceeded against ex parte vide order dated 05.11.1997.

Mr. M.L. Sarin, Senior Advocate with Mr. Ritesh Aggarwal, Advocate for the remaining respondents.

PANKAJ JAIN, J.

Plaintiff is in second appeal.

2. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the appellant as the plaintiff and respondents No.1 to 6 as defendants No.2 to 7.

3. Plaintiff filed suit for declaration claiming that he is owner in possession of the house described in the headnote of the plaint shown as ABCD and in the alternate the entire building is a joint Hindu family and co-pacenary property and the plaintiff is entitled to 1/2 share in the same. Further prayer is that sale deed dated 16.08.1985 executed by Goinda Mal in favour of defendant-Satish Kumar @ Mithu be declared as null and void. As per the case pleaded by plaintiff, he along with his father defendant No.1 constitute a joint Hindu family. They were joint in mess and residence and constituted joint Hindu family. They separated their residence and mess few years back but the property remained joint. The property shown as ABEF in the site plan is ancestral and joint Hindu family property of the plaintiff and defendants No.1 and 2. The same was partitioned by defendant No.1 in the year 1982. Both plaintiff and defendant No.2 were put in possession of their respective shares of suit property. The property was partitioned in the presence of Bhagwant Rai, who is a close relative (brother-in-law of Goinda Mal). Goinda Mal owned two properties i.e. the property in dispute and some land at Jaitu. The land at Jaitu was sold by deceased Goinda Mal. He kept the sale proceeds with him. The suit property was partitioned amongst the plaintiff and defendant No.2.

4. Defendant No.2-Satish Kumar @ Mithu and Goinda Mal filed joint written statement disputing the averments raised in the plaint. It was denied that the property was a joint Hindu family or copacenary property. It was asserted that Goinda Mal was absolute owner of the property in dispute and sold the same to defendant No.2 for a consideration of Rs.40,000/- vide registered sale deed dated 13.08.1985. Defendant No.2 further mortgaged the property with possession in favour of defendants No.3 to 7 who are in possession thereof.

5. On the basis of the pleadings, suit filed by the plaintiff was put to trial by the Court of First Instance, framing following issues.

“1. Whether the house append BF is joint Hindu family and coparcenary property of defendants No.1 and 2 and plaintiff is owner of 1/3rd share? OPP

2. Whether in June, 1982, the house in dispute was partitioned and the plaintiff got the rest of the house ABCD except BFDC, which fell to the share of defendant No.2? OPP

3. Whether defendant No.2 purchased the house from defendant No.1 as bonafide purchaser for consideration without notice? OPD

4. If issue No.3 is not proved, whether the plaintiff is entitled to 1/3 share and sale in favour of defendant No. 2 by defendant No. 1 is not valid? OPP.

5. Whether the suit for mere declaration lies? OPP.

6. Relief.”

6. Trial Court while deciding issue w.r.t. nature of the property held that there is no evidence that the property devolved upon Goinda Mal under Section 8 of the Hindu Succession Act. It has come in evidence that Goinda Mal had two sisters, who were not given any share at the time of partition and, thus, the presumption is that the property was divided between the co-parceners. Trial Court thus held that the property in question being co-parcenary property both plaintiff and defendant No.2 had a right by birth in the property.

7. While decidi