(105) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 08.05.2026 RAM DEI AND OTHERS ...Appellants Vs.

RAM KUMAR AND ANOTHER ...Respondents CORAM:- HON'BLE MR. JUSTICE VIRINDER AGGARWAL Present: Mr. Sahil Nehra, Advocate for the appellants.

VIRINDER AGGARWAL , J. (Oral)

1. The present Regular Second Appeal has been filed assailing the judgment and decree dated 14.05.2019 passed by the learned Additional District Judge, Jhajjar, whereby the appeal preferred by the respondents/defendants was allowed and the well-reasoned judgment and decree dated 21.09.2017 passed by the learned Trial Court, decreeing the civil suit filed by the appellants/plaintiffs, has been set aside.

2. Briefly stated, the appellants/plaintiffs instituted a suit for declaration challenging the validity of the sale deed dated 05.07.2011 executed by defendant No.1 in favour of defendant No.2, seeking a declaration that the same is illegal, null and void, having been executed without any legal necessity. It was pleaded that the suit land, in the hands of defendant No.1- Ram Kumar, was ancestral and coparcenary property of a Joint Hindu Family, and as such, he had no authority in law to alienate the same without legal necessity or benefit of estate. It was further pleaded that earlier also defendant No.1-Ram Kumar had transferred the suit property in favour of one Jai Bhagwan, husband of defendant No.2, through a civil Court decree, which was subsequently set aside vide judgment and decree dated 30.07.1999, thereby restoring the rights of the parties. Defendant No.2 contested the suit by filing written statement, inter alia, asserting that the suit property was not ancestral in the hands of defendant No.1, rather it was his self-acquired property, which had fallen to his share in a family settlement allegedly arrived at in the year 1988. It was further pleaded that defendant No.1 was the exclusive owner in possession of the property and was fully competent to alienate the same, and that the sale deed in question was executed for a valid and lawful consideration. On the basis of the pleadings of the parties and evidence led, the learned Civil Court decreed the suit vide judgment and decree dated 21.09.2017 in favour of the plaintiffs. However, the appeal preferred by respondent/defendant No.2 was allowed by the learned Additional District Judge, Jhajjar vide judgment and decree dated 14.05.2019, whereby the judgment and decree passed by the Trial Court were set aside. Aggrieved by the same, the appellants/plaintiffs have preferred the present Regular Second Appeal before this Court.

3. Learned counsel for the appellants contended that the learned First Appellate Court has decided the appeal on a ground which was neither pleaded nor raised by the contesting respondent/defendant. It is submitted that the plea of family settlement set up by defendant No.1 was not substantiated by any cogent evidence on record, and the First Appellate Court erred in law in proceeding on an entirely new premise that the suit property was self- acquired in nature. It is further contended that the learned First Appellate Court has, in effect, introduced a new legal theory by observing that the suit property came into the hands of defendant No.1 as an occupancy tenant, and that ownership rights subsequently matured in his favour. According to learned counsel, such a finding amounts to travelling beyond the pleadings of the parties, as no foundation had been laid in the written statement for such a conclusion. It is well-settled that no Court can set up a new case for the parties which is not pleaded. It is also submitted that the First Appellate Court erred in framing, at the appellate stage, an issue relating to the nature of the suit property, without affording the appellants a fair and proper opportunity to meet such a case. It is further argued that since defendant No.1 was proceeded against ex parte, an adverse inference ought to have been drawn against him, whic