IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on 26th of May, 2025 Pronounced on 25^th of August, 2025 RSA No.1780 of 2000 (O&M)

Dilbag Singh and another .....Appellants Versus Maghar Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. G.S. Sandhu, Advocate for the appellants.

Mr. M.L. Saggar, Senior Advocate with Mr. Omesh Garg, Advocate for respondents No.2 to 5.

PANKAJ JAIN, J.

Plaintiffs are in second appeal.

2. For convenience, the parties hereinafter are referred to by their original position before the Court of the First Instance, i.e. the appellants as plaintiffs and respondents as defendants.

3. Plaintiffs filed suit for possession of land measuring 8 Kanals 0 Marla. The challenge is to the Sale Deed dated 29.05.1986 in favour of defendants No.1 to 4 and Mortgage Deed dated 02.05.1985 in favour of defendant No.5 executed by No.6.

4. As per the plaintiffs, they being co-parceners have right in the property by birth as the property is a co-parcenary ancestral property. Defendant No.6, their father sold the same without any legal necessity and without consideration.

5. Suit was contested by the defendants. Defendants No.1 to 4 filed joint written statement denying the status of the plaintiffs as co- parceners or co-owners in the property in dispute. It was pleaded in the written statement that as per Mortgage Deed dated 02.05.1985 qua land measuring 7 Kanals 8 Marlas stands mortgaged with possession by Baland Singh, defendant No.6 in favour of defendant No.5 for a valuable consideration of Rs.30,000/- and for legal necessity to pay mortgage debt qua earlier Mortgage Deed dated 05.08.1983 to one Jai Kumar. In order to pay the entire mortgage debt, Sale Deed dated 29.05.1986 was executed in their favour by defendant No.6. Sale Deed was also executed to meet household expenses, repair of house etc. Thus sale deed was executed as family was in due need of money

5.1. Defendant No.5 though filed separate written statement but pleaded on the lines of the written statement filed by defendants No.1 to 4 and also added that defendant No.6 apart from mortgaging the property, in question, also mortgaged land measuring 9 Kanals 6 Marlas for an amount of Rs.12,000/- in favour of one Kuldip Singh vide Mortgage Deed dated

31.08.1981.

5.2. Defendant No.6 admitted the claim of the plaintiffs.

6. On the basis of the pleadings, Court of the First instance framed the following issues:

“1. Whether the plaintiffs constitutes joint hindu family with the defendant no.6? OPP.

2. Whether the suit land is coparcener and ancestral property?

OPP.

3. If issue No.1 & 2 are proved whether allegations made by defendant no.6 vide sale deed dated 29/5/1986 and mortgage deed dated 2/5/1985 in favour of defendant no.1 to 5 is legal necessity? OPD 1 to 5

4. Whether the plaintiffs are governed by customory law?

OPD.

5 Whether the plaintiffs are entitled to decree for possession and injunction prayed for by them? OPP.

6. Relief.”

7. While deciding Issue No.1, the Court of the First Instance found that it stands proved from the pedigree table that Mukhtiar Singh, great grandfather of the plaintiffs, was the original owner. From him the property was inherited by Bant Singh, grandfather of the plaintiffs and from Bant Singh, property travelled to defendant No.6, father of plaintiffs. Court of the First Instance thus held that the plaintiffs constituted joint Hindu family with defendant No.6 and are co-parceners. Property in the hands of defendant No.6 being a co-parcenery property, plaintiffs have a birth right in the same.

7.1. Trial Court while deciding Issue No.3 found that the family had no necessity to sell the land when Sale Deed (Exhibit D3), was executed in favour of defendants No.1 to 4. Court of the First Instance found that on 29.05.1986 when the Sale Deed, Exhibit D-3, was executed by defendant No.6 in favour of defendants No.1 to 5, on the same date, defendant No.5 borrowed a sum of Rs.16,000/- from Jasbir Kaur wife of