IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

112 RSA-945-2022 (O&M)

Date of decision: 27.02.2025 Mukesh & Others ...Appellant(s)

Vs.

Smt. Kitabo Devi & Others ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Abhinav Sood, Advocate for the appellants.

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NIDHI GUPTA, J.

The plaintiffs are in Second Appeal against the concurrent judgments and decrees of the learned Courts below whereby their suit for declaration with consequential relief of joint possession and permanent injunction, has been dismissed by both the Courts below.

2. The parties shall here in after be referred to as per their status before the learned Trial Court i.e. the appellants as ‘the plaintiffs’ and the respondents as ‘the defendants’.

3. Brief facts of the case are that the plaintiffs are the daughter of defendant no.6 namely Shamsher Singh. The facts as set out in the plaint, are that the Defendant No.6 Shamsher Singh and his son defendant no.7 namely Virender Singh are co-owners in joint possession as co-parceners in equal share of ancestral agricultural land comprising in half share of agricultural land (1 Kanal 1 Marla) and also owner of half share (5 kanal 12 marla) also owner of 3/16 share of agricultural land (8 kanal 0 marla), owner of half share (80 kanal 6 marla) and also owner of half share (2 kanal 7 marla). Said Suit property is ancestral and co-parcenary property in the hands of defendant No.6. As such, Defendant No.6 was not competent to execute registered Sale Deed No.5417 dated 03.10.2008 (Ex.PW4/A) in favour of defendant No.1 in respect of part of the above suit property to the extent of 20K-0M, which is wrong and without any legal necessity so impugned sale is null and void; and subsequent mutation No.3278 sanctioned on basis of this Sale Deed is also ineffective.Further declaration was sought that Release Deed no. 7280 dated 8.3.2013, executed by defendant no.6 in respect of 26K-3M from the above Suit land in favour of defendants no.2 to 5 and the subsequent mutation no. 3420 is also null and void, and not binding on the rights of the plaintiffs and defendant no.7 as the same is executed and registered only to deprive the legal rights of the plaintiffs and defendant no.7.

4. Upon notice, the defendant No.1 appeared and filed written statement, resisting the suit by inter alia stating that defendant No.1 is owner in possession of the agricultural land measuring 20 kanal 0 marla, purchased by her from defendant No.6 - Shamsher Singh vide Sale Deed dated 03.10.2008 for consideration of Rs.27,50,000/- in respect of which mutation No.3278 has been sanctioned in favour of defendant No.1. It is further stated in the written statement that Shamsher Singh and his brother Kartar Singh had got the suit land by way of judgment and decree dated 14.12.1982 passed in Civil Suit No.636/1982 titled as “Shamsher Singh & Others Vs. Kam Singh”. Thus, the property was self-

acquired property; and thus, Shamsher Singh was fully competent to sell the same or deal with it in any manner that he chose. It was denied that the plaintiffs and defendants No.6 & 7 are co-owners and are in joint possession as co-parceners in equal shares in the land in dispute; or that the land in dispute is ancestral agricultural land; or that the defendant No.1 has inherited this property from her father, grandfather and great grandfather but in fact the defendant No.1 is owner in possession of the agricultural land measuring 20 kanal 0 marla which she had purchased vide Sale Deed dated 03.10.2008 from Shamsher Singh for a consideration of Rs.27,50,000/- and also for legal necessity. It is further stated in the written statement by defendant No.1 that the sale consideration was used by Shamsher Singh for installing tube-well and to pay the loan amount of State Bank of India, Village Shodhapur branch and he has also constructed a house and has constructed the boundary wall in the other land. The sale deed dt. 03.10.2008 has been executed and registered with the con