The burden of proving legal necessity for the alienation of ancestral coparcenary property rests on the defendant; mere assertions of debt without supporting evidence are insufficient to justify such alienation.

PANKAJ JAIN, J.

Defendant No.1 is in second appeal.

For convenience, the parties hereinafter are referred to as by their original position before the Court of the First Instance, i.e., the appellant as defendant No.1, respondents No.1 and 2 as plaintiffs, respondents No.3 to 14 as respondents No.2 to 13.

Vide order dated 27.11.2018, respondents No.6 to 8 and 10 were ordered to be transposed as appellants in the present appeal.

Plaintiffs filed suit seeking decree of joint possession of suit land comprising of 2 different parcels of land. One situated at village Hansaron and another situated in village Ghataron.

As per the plaintiffs, the suit property is an ancestral coparcenary property inherited from their common ancestor namley Inder Singh. Their grandfather, i.e., defendant No.1 Bhagat Singh alienated portions of ancestral land vide sale deeds, dated 04.03.1976 and 08.09.1980 without there being any legal necessity. The alienation made by Bhagat Singh is not binding upon the right of the plaintiffs in the suit land being co-parceners.

Suit was contested by defendant No.1. Defendant claimed that the property in his hands is a self-acquired property. Earlier injunction suit filed by the plaintiffs was dismissed. The findings recorded in the injunction suit operate as a res judicata. Defendant further claimed that even if the suit property is held to be ancestral, defendant No.1 alienated the same being in dire need of money to pay off his debts.

Suit filed by the plaintiff was put to trial by the Court of the First Instance, framing following Issues:

1) Whether the plaintiffs and the defendant no.1 to 8 constituted joint Hindu family? OPP.

2) Whether the suit property is joint Hindu family coparcenary property? OPP.

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

4) Whether the suit is barred by the principle of resjudicata? OPD.

5) Whether the pedigree table propounded in para No.1 of the plaint is incorrect? OPD.

6) Relief.

The Court of the First Instance partly decreed the suit. Admitting the pedigree table propounded by the plaintiffs to be correct, the Court of the First Instance found that the land situated at Hansaron devolved upon defendant No.1 Bhagat Singh from his father Inder Singh and the same was ancestral property qua the plaintiffs. The Court further found that the plaintiffs having failed to prove that the estate situated in village Ghataron was ancestral in the hands of defendant No.1, they are not entitled for decree qua part of suit property situated in village Ghataron.

Plaintiffs preferred appeal. Cross-objections were filed by defendant No.1. The Lower Appellate Court dismissed both appeal and cross-objections affirming the findings recorded by the Court of the First Instance.

The present appeal was decided by a detailed judgment passed by this Court, dated 11.04.2008 primarily holding that the suit was not maintainable during the lifetime of father and that the excerpt, Exhibit P13 was not proved in accordance with law.

Plaintiffs preferred an appeal before the Supreme Court.

The Supreme Court vide order dated 16.02.2016 set aside the judgment passed by this Court and remanded the matter back to be decided afresh in accordance with law.

After remand, this Court vide order dated 27.03.2019 observed as under:

“Although, this appeal is pending for the last 19 years, however, in order to do substantive justice, it would be more appropriate to call for the report on following issue:-

Whether the excerpt Ex.P13 has been proved in accordance with Volume-I Chapter IX Rule 5(v) and (vi) of the High Courts Rules and Orders?

Mr. Sarju Puri, learned counsel appearing for respondents no.6 to 8 and 10 submits that the excerpt has not been proved in accordance with the aforesaid provisions in the High Court Rules and Orders. Whereas learned counsel appearing for respondents no. 1 and 2 submits that the learned Court had appointed a special kanungo who had prepared the report but the