RSA No.150 of 2017 (O & M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No.150 of 2017 (O & M)

Date of Decision:23.08.2018

Deepak Kumar

...Appellant

Versus

Surjan Singh and others

...Respondents

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. Nitin Jain, Advocate

for the appellant.

Mr. Aayush Gupta, Advocate

for respondent No.1.

Mr. Sanjeev Gupta, Advocate

for respondents No.3 to 5.

ANIL KSHETARPAL, J.

CM-12432-C-2018

Application stands disposed of after noting that Surjan Singh

has died on 22.04.2017 and his all Class I heirs are already party in the

litigation.

Main Case

Plaintiff No.1-appellant is in the regular second appeal against

the concurrent findings of fact arrived at by the Courts below.

Plaintiffs, mother and son, filed a suit for declaration claiming

that as per agreement as well as family settlement dated 02.05.2005,

plaintiffs are in possession of the property as the aforesaid family settlement

is valid and binding and, therefore, the defendants be restrained from

interfering in their possession. In fact, all the parties to this unfortunate

litigation are members of one family. Surjan Singh is father whereas Prem

Sheetal Gawri

2018.09.14 14:28

I attest to the accuracy and

integrity of this document

phhc

RSA No.150 of 2017 (O & M)

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Lata is his wife. Plaintiff No.1 and defendant No.2 are his two sons whereas

defendants No.3 and 4 are his daughters.

Defendant No.1 contested the suit and pleaded that no deed of

family settlement was executed or attested by the notary and rather the

aforesaid agreement is illegal, null and void. It was pleaded that on account

of mutual understanding, plaintiff No.1 was allowed to occupy two rooms,

one kitchen, one toilet and one shop, whereas defendant No.2 was given

permissive possession of one room, one store with kitchen, bathroom and

one shop. One room and one store was kept by defendant No.1 to live with

plaintiff No.2. It was further pleaded that plaintiff No.1 in connivance with

plaintiff No.2 occupied the room and the store, which was kept by defendant

No.1 to live with his wife as plaintiff No.2. His wife deserted defendant

No.1. Defendant also filed a counter claim for seeking possession.

Both the Courts after appreciating the evidence available on the

file dismissed the suit filed by the plaintiffs whereas the counter claim filed

by defendant No.1 was decreed. It may be noticed that defendant No.1 has

died on 22.04.2017.

Learned counsel for the appellant while referring to the written

statement filed by defendant No.1 submitted that defendant No.1 has

pleaded an oral family settlement. He submitted that even if the written

family settlement dated 02.05.2005, is not admissible in evidence still in

view of the pleadings, existence of the family settlement is proved. Hence,

he submitted that the judgments passed by the Courts below are erroneous.

On the other hand, learned counsel for the respondents while

drawing attention of the Court to the alleged family settlement, which has

been filed as Annexure A-2, has submitted that aforesaid family settlement

Sheetal Gawri

2018.09.14 14:28

I attest to the accuracy and

integrity of this document

phhc

RSA No.150 of 2017 (O & M)

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is in 'presenti' and any document which is dealing with the immovable

property worth more than Rs.100/- and creating any right, title or interest in

the immovable property at present is required to be compulsory registrable

under Section 17 of the Registration Act, 1908. Hence, he submitted that

Courts below have rightly dismissed the suit and decreed the counter claim.

As regard argument of learned counsel for the appellant qua

oral settlement as pleaded by defendant No.1, learned counsel for the

respondents pointed out that no evidence has been led. Both the Courts have

found that the settlement between the parties was dated 02.05.2005, which

was in 'presenti' and since it was not re