Property cannot be held as ancestral property solely on the basis of admissions in pleadings or recitals in deeds; the burden lies on the plaintiff to prove the ancestral nature of the property through concrete documentary evidence.

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NIDHI GUPTA, J.

Defendant No.1 is in Second Appeal against the judgment of reversal; whereby suit filed by the plaintiff/respondent No.1 for declaration and possession with consequential relief of permanent injunction although dismissed with costs by the learned Trial Court, has been partly allowed in Appeal, by the learned First Appellate Court.

Brief facts of the case as pleaded in the plaint are that the plaintiff and defendant No.1/ appellant are real brothers. Defendants No.2 to 4 are the legal heirs of another brother of the plaintiff, namely, Mahinder Singh. It is averred that in the year 1961, plaintiff had constructed his residential house i.e. suit property with his own funds; and suit property is owned and possessed by plaintiff being Biswadar of the village; and was occupied by the plaintiff till 1983. Thereafter, plaintiff had shifted to Chandigarh and the suit house remained closed for some time. It was averred that on the request of Mahinder Singh/father of defendants No.2 to 4, the suit house is given to him/Mahinder Singh as licensee. Mahinder Singh had expired in 1966. After his death, defendants No. 2 to 4 had also shifted to Chandigarh and the house again remained closed. Thereafter, defendant No.1 had requested the plaintiff to give the house to him for some time. Accordingly, suit house was now given to appellant as licensee. Plaintiff had alleged in the plaint that defendant No.1 had promised that house will be vacated as and when required by the plaintiff. However, when the plaintiff requested defendant No.1 to vacate the suit house, he had refused. Accordingly, plaintiff had previously filed a Civil Suit no. 354 dated 20.07.2002 before the Civil Court at Jagadhri seeking possession of the suit property. In the said suit, defendant No.1 had put in appearance and filed written statement on 13.09.2002 denying the ownership of the plaintiff over the suit property. Defendant No.1 had also mentioned about a Release Deed No. 1054 dated 11.10.2002 which was later on procured by the defendant no.1 from Sh. Vikram Parkash, father of the parties in his favour stating therein that suit property is ancestral. It was further alleged by the plaintiff that the said Release Deed is procured by defendant No.1 as a result of fraud and misrepresentation. Plaintiff had then withdrawn the said Civil Suit with a statement to file fresh one. Consequentially, present Civil Suit No.338 dated 06.05.2004 came to be filed seeking declaration that “the Release Deed dated 11.10.2002 executed by Sh. Vikram Parkash Singh in favour of defendant No.1 is illegal, null and void; AND in alternate if the court comes to the conclusion that the property detailed in Release Deed is ancestral property then the parties to the suit be declared owners in equal share of the property detailed in Release Deed as per succession; AND suit for possession of the suit property as described in the plaint; AND and consequential relief of permanent injunction restraining defendant No.1 from alienating the suit property in any manner.”

Upon appraisal of the pleadings and the evidence led by the parties, the learned Civil Judge (Junior Division), Jagadhri had dismissed the suit of the plaintiff vide judgment and decree dated 11.12.2009. However, the Civil Appeal filed by the plaintiff was partly allowed by the Additional District Judge, Yamuna Nagar at Jagadhri vide judgment and decree dated 06.08.2012, by holding the suit property to be ancestral, as follows: -

“21. ……… Hence, the relief claimed by the plaintiff-appellant is granted to the extent that he is declared as co-owner in the suit property and the remaining relief as claimed by him is declined. The suit is partly decreed to this extent. Appeal also stands partly allowed. No order as to costs...........”

Hence, the present second appeal by the defendant No.1.

It is inter alia submitted by learned counsel for the appellant that learned First Appellate Court has decreed the suit of the plaintiff onl