IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-448-1989 (O&M)

Reserved on: 05.02.2025 Pronounced on: 10.02.2025 BALDEV SINGH AND OTHERS . . . .APPELLANTS Vs.

AMAR SINGH (DECEASED) THROUGH LRS AND OTHERS . . . . RESPONDENTS CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. Vikas Kumar Gupta, Advocate, for the appellants.

Ms. Deepali Puri, Advocate, for respondents No.1 to 4.

DEEPAK GUPTA, J.

Suit for declaration regarding property in dispute filed by plaintiffs Amar Singh etc. (contesting respondents No.1 to 4 herein) was dismissed by the trial Court vide judgment & decree dated 03.02.1988. However, the appeal filed by the said plaintiffs was partly accepted by the First Appellate Court on 06.12.1988, giving rise to the present Regular Second Appeal by some of the contesting defendants (appellants herein), impleading other contesting defendants as proforma respondents N: 6 & 7.

2. Trial Court record was called. Same has been perused. In order to avoid any confusion, parties shall be referred as per their status before the trial Court.

3.1 Plaintiffs are sons of defendant No.1 - Gurbax Singh (proforma respondent N: 5 herein). They constituted a joint Hindu family with Gurbax Singh as its Karta. Suit property in the hands of Gurbax Singh was Joint Hindu Family coparcenary property and being managed by Gurbax Singh as its Karta. Gurbax Singh was convicted for committing double murder of Balbir Singh and Hari Singh and was undergoing life imprisonment. Legal heirs of Balbir Singh (defendants No.2 to 7-appellants and proforma respondents N: 6 & 7 herein) brought a suit for compensation. Suit was decreed on 24.04.1980 for compensation of ₹60,000/- vide Ex.DZ/2, which was later on reduced by the appellate Court to ₹35,000/-. In order to realize the said amount, the decree holders-legal heirs of Balbir Singh brought the execution and in the execution proceedings, the suit property i.e. Joint Hindu Family coparcenary property of the plaintiffs was put to auction vide order dated 13.06.1983. Plaintiffs’ filed objections in the said Execution petition, but the same was dismissed by the Executing Court vide order dated 08.12.1983 vide Ex.P17 holding that objections had been filed just to delay the execution proceedings. The said order was confirmed by the Appellate Court on 28.02.1984 vide Ex.DZ/1 and there is nothing to show that the said order was further challenged.

3.2 Plaintiffs then brought the present suit seeking declaration that suit property is Joint Hindu Family coparcenary property and that they & defendant N: are owners in possession thereof. They further prayed for a consequential relief to set aside the sale dated 13.06.1983 by the Executing court being more than the due share of defendant No.1.

3.3 Defendants No.2 to 7 contested the suit by claiming that suit property was not coparcenary property. Objection was further raised that similar pleas, as taken in the present suit were raised by the plaintiffs by filing objections during the execution proceedings and the same have been dismissed up to the Appellate Court and therefore, the present suit was not maintainable being barred by res judicata.

3.4 Necessary issues were framed. Evidence produced by the parties was taken on record.

4. Trial Court found that the plaintiffs and defendant No.1 constituted a Joint Hindu Family and the suit property was their Joint Hindu Family coparcenary property. However, suit of the plaintiffs was dismissed vide judgment dated 03.02.1988 being not maintainable, as objections filed by them during the execution proceedings, had already been dismissed and the order was maintained up to the Appellate Court. It was further held that auction through court was not alienation without legal necessity and that no case was made out in favour of the plaintiffs, whose estate has been auctioned by the Court in Execution Proceedings for a liability incurred by their father.

5. Plaintiffs went in appeal. The First Appellate Court affirmed the finding to