SUNIL vs JASWANTI - 2024-02-01

O R D E R

1. Leave granted.

2. Heard learned counsel for the appellants. Despite name being shown and the matter having been passed over, the respondent has not chosen to appear before this Court.

3. The appellants are the plaintiffs in the suit. The suit has been filed for declaration and consequential relief of possession. Declaration has been sought for as there was a wrong mutation in the revenue record. The first appellant is the son and the second appellant is the wife of the defendant No.2. Respondent No.1, who is defendant No. 1, is the mother of defendant No.2 - Rameshwar. As the relationship between the appellants on the one hand and defendant No.2 on the other got strained, appellant No.2 filed a petition for maintenance under Section 125 of the CrPC which was decreed. The decree was not honoured by defendant No.2. Thereafter, a suit was filed by respondent No.1 against defendant No.2 in which a decree was obtained. In the purported compliance of the said decree, defendant No.2 has transferred the suit properties in favour of respondent No.1.

4. Inter alia alleging that the suit properties are ancestral and joint family properties, and the decree obtained is a collusion between the mother and son to defeat the rights of the appellants, the present suit was filed.

5. The Trial Court, after considering the materials in extenso decreed the suit as prayed for. A specific finding has been given that the earlier suit between the defendants was a collusive one.

6. On appeal, the Lower Appellate Court confirmed the judgment and decree of the Trial Court. Aggrieved, the respondent filed a Second Appeal before the High Court. The High Court, by a cryptic order, allowed the appeal and hence the present appeal is filed before us.

7. We have perused the judgment of all the three Courts. While, the Trial Court and the First Appellate Court framed issues and considered the evidence available on record, the High Court without undertaking any exercise, by a cryptic order allowed the appeal holding that there is no need for framing substantial question of law in view of Section 41 of the Punjab Courts Act, 1918. In other words, the concurrent findings rendered by the Courts below have not been assailed and by merely giving a reason that the allegations made in the pleadings are bald and the evidence adduced is not sufficient, the appeal was allowed. Incidentally, the decree which was held to be collusive was taken as such.

8. We do not appreciate the approach of the High Court in setting aside the concurrent finding rendered by both the Courts below. While, it can be stated that there is no need for framing substantial question of law, the issues will have to be considered in their right perspective, including the legal contentions. Until and unless the findings of facts were found to be perverse, the High Court cannot set aside the same and, that too, without giving adequate reasoning. We need not reiterate the settled position of law as there is always a presumption of jointness under the Hindu Law, which presumption has been rightly proved by adducing adequate evidence by the appellants. When the decree was found to be collusive, the High Court ought not to have given a contrary finding without any basis at all. Thus, we have no hesitation in setting aside the judgment and decree of the High Court passed in R.S.A. No.2394/2011.

9. Accordingly, the appeal stands allowed and the judgment and decree of the Trial Court, as confirmed by the Lower Appellate Court, stands restored.

10. Pending application(s), if any, also stand disposed of.

……………………………………………………J.

[M.M. SUNDRESH]

……………………………………………………J.

[S.V.N. BHATTI]

NEW DELHI;

1st FEBRUARY, 2024 ITEM NO.10 COURT NO.13 SECTION IV-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 15864/2018

(Arising out of impugned final judgment and order dated 21-02-2018 in RSA No. 2394/2011 passed by the High Court of Punjab & Haryana at Chandigarh)

SUNIL & ANR. Petitioner(s)

VERSUS JASWANTI Respondent(s)

Date : 01-02-2024 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE M.M. SUNDRESH HON'BLE MR. JUSTICE S.V.N. BHATTI For Petitioner(s) Mr. G. K. Bansal, AOR Mr. Sanjay Bansal, Adv.

Mr. Ajay Choudhary, Adv.

Mr. Shobhit Garg, Adv. Ms. Swati Bansal, Adv.

Ms. Vaishali Gupta, Adv. Ms. Ayushi Bansal, Adv.

For Respondent(s)

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

The appeal is allowed in terms of the signed order.

Pending application(s), if any, also stand disposed of. (SWETA BALODI) (POONAM VAID)

COURT MASTER (SH) COURT MASTER (NSH)

(Signed order is placed on the file)