Punjab-Haryana High CourtTinku @ Malkhan vs Saurabh And Others on 19 January, 2021Equivalent citations: AIRONLINE 2021 P AND H 909Author:Anil KshetarpalBench:Anil KshetarpalRSA-5-2021 (O&M)                                             -1-\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n                                                 RSA-5-2021 (O&M)\n                                                 Date of decision : 19.01.2021\n\nTinku @ Malkhan                                                     ...Appellant\n\n                                        Versus\n\nSaurabh and others                                                 ...Respondents\n\n\nCORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL.\n\nPresent:    Mr. Jayender S. Chandel, Advocate for the appellant.\n\n            ****\n\nANIL KSHETARPAL, J.CM-52-C-2021\n\n            For the reasons stated in the application, which is duly\n\nsupported by an affidavit, delay of 03 days in filing the present appeal is\n\ncondoned.Application is allowed.CM-53-C-2021\n\n            For the reasons stated in the application, which is duly\n\nsupported by an affidavit, delay of 564 days in re-filing the present appeal is\n\ncondoned.Application is allowed.Main case\n\n            The plaintiff-appellant has filed this Regular Second Appeal\n\nchallenging correctness of concurrent findings of fact arrived at by both the\n\nCourts while dismissing his suit seeking decree of declaration that he is\n\n\n\n\n                               1 of 5::: Downloaded on - 20-01-2021 05:54:13 :::RSA-5-2021 (O&M)                                               -2-\n\nowner of the suit land to the extent of 3/10th share as the suit property is\n\nJoint Hindu Family Coparcenary Property. The plaintiff also claims that the\n\nproperty detailed in para 1 of the plaint is also ancestral.Some facts are required to be noticed. The name of plaintiff's\n\ngrandfather was Ghasitu son of Kapuri son of Dundi.. He (Ghasitu) married\n\ntwice during his lifetime. He firstly married with Smt. Zile and from the\n\naforesaid wedlock, a son Tarsem was born. Thereafter, Ghasitu again got\n\nmarried with Phulo Devi, defendant No.4 and out of that wedlock, late Sh.\n\nRajpal was born. The plaintiff is the son of late Sh. Rajpal. Ghasitu also had\n\ntwo daughters, however, it is not clear that whether they were born from his\n\nfirst or second marriage. It is not in dispute that late Sh. Rajpal died on\n\n08.01.1993 when the plaintiff was barely 2 years and 3 months old. His\n\nmother (the widow of Rajpal) i.e. Rani re-married with Avtar Singh,\n\nresident of Una (State of Himachal Pradesh), after a period of 9 months of\n\ndeath of Rajpal. It is the case of the plaintiff that he went with his mother\n\nand resided there. The plaintiff claims that there he was also called Raman.\n\nThe plaintiff himself has pleaded that late Sh. Ghasitu, who died in May\n\n2003, apart from inheriting certain property from his father Kapuri,\n\npurchased various pieces of agriculture land, details whereof have been\n\ngiven in para 9 and 10 of the plaint.The suit was contested by defendant No. 1 to 3. It was pleaded\n\nthat the property was not Joint Hindu Family Coparcenary Property. Ghasitu\n\nafter the sale of gold jewelry left behind by Smt. Zile, purchased the\n\nagriculture land. It was further pleaded that he was also doing business of\n\ndairy farming, sale and purchase of buffaloes and bulls. It was further\n\n\n\n                                2 of 5::: Downloaded on - 20-01-2021 05:54:13 :::RSA-5-2021 (O&M)                                                -3-\n\npleaded that in a family settlement, the land in dispute came to the share of\n\ndefendants and the same was accepted by Ghasitu in a civil suit, resulting in\n\na Court decree dated 14.09.1995. Apart therefrom, the defendants further set\n\nup a registered Will allegedly executed by late Sh. Ghasitu on 19.06.2002. It\n\nis significant to note that the defendant No. 4 to 7 admitted the claim of the\n\nplaintiff.The plaintiff appeared in evidence as PW1 and produced\n\nvarious documents. On the other hand, the defendants examined Smt. Memo\n\nDevi-the widow of Tarsem Singh as DW1, Hari Singh, Registration Clerk as\n\nDW2, Baldev Singh, Document Writer as DW3, Om Parkash, Numberdar as\n\nDW4 and Rahan Singh as DW5. They also produced various documents.Learned trial Court as well as First Appellate Court, on\n\nappreciation of evidence, have concurrently recorded that the plaintiff has\n\nfailed to prove that the suit property was Joint Hindu Family Property and,\n\ntherefore, not entitled to 3/10th share in the suit property.This Court has heard learned counsel for the appellant at length\n\nand with his able assistance perused the paper book.Learned counsel for the appellant has submitted that the Civil\n\nCourt decree dated 14.09.1995 is based upon an oral family settlement\n\nwhich is not permissible. He further submitted that the First Appellate Court\n\nhas erred while returning the finding that the suit filed by the plaintiff was\n\nbarred. He explained that the plaintiff filed the suit within a period of three\n\nyears from date he attained the age of majority. He further submitted that\n\nSh. Ghasitu purchased the land from the agricultural income of Joint Hindu\n\nFamily Coparcenary Land and therefore, the Courts have erred in dismissing\n\n\n\n                                3 of 5::: Downloaded on - 20-01-2021 05:54:13 :::RSA-5-2021 (O&M)                                           -4-\n\nthe suit.Before this Court examines the arguments of learned counsel, it\n\nis significant to note certain facts:-1)     It is not in dispute that the plaintiff has inherited the land measuring\n\n       two acres from his father late Sh. Rajpal. Still further, the plaintiff\n\n       had also received a residential plot from Smt. Phulo Devi, his\n\n       grandmother. The plaintiff had not disclosed these facts.2)     It is the case of the plaintiff himself that after the death of late Sh.Rajpal (his father), Smt. Rani re-married with Avtar Singh, resident\n\n       of Una (State of Himachal Pradesh) and the plaintiff resided there.3)     The plaintiff has himself pleaded that the land mentioned in para 9\n\n       and 10 of the plaint was purchased by Ghasitu.4)     The plaintiff has neither examined his grandmother Smt. Phulo who\n\n       in the written statement admitted the claim of the plaintiff in the suit\n\n       nor produced Smt. Rani-his mother, who had also supported the case\n\n       of the plaintiff.Now, the stage is set to consider the merit in the arguments of\n\nlearned counsel for the appellant.As regards first argument, it may be noted here that the oral\n\nfamily settlement is permissible and learned counsel for the appellant failed\n\nto draw attention of the Court to any provision of law requiring that a family\n\nsettlement must be in writing. Still further, in the present case, existence of\n\nthe family settlement has been admitted by Ghasitu in the Court, resulting in\n\njudgment and decree dated 14.09.1995. Ghasitu remained alive for 8 long\n\nyears, thereafter, but never questioned the decree.4 of 5::: Downloaded on - 20-01-2021 05:54:13 :::RSA-5-2021 (O&M)                                           -5-Next argument of learned counsel for the appellant does have a\n\nmerit. The plaintiff was born on 08.08.1990. He attained the age of majority\n\nin August 2008, whereas the suit was filed on 08.11.2010. Thus, the suit\n\ncannot be said to be beyond time. The finding of the learned First Appellate\n\nCourt to this extent is erroneous.Next argument of learned counsel that the land which was\n\npurchased by Ghasitu through various sale deeds as mentioned in para 9 and\n\n10 of the plaint is a coparcenary property, cannot be accepted particularly\n\nwhen the plaintiff has failed to lead reliable evidence to this effect. Except\n\nthe bald statement of the plaintiff, who was born on 08.08.1990, no other\n\nevidence has been produced. As noted above, the plaintiff has not produced\n\nhis grandmother and his mother. The plaintiff has also not examined any\n\nother elder member of the family or villager. Still further, there is no\n\nevidence that Ghasitu had ever thrown the self-acquired property in\n\ncommon stock.Keeping in view the aforesaid facts, there is no ground to\n\ninterfere with the concurrent findings of fact arrived at by both the Courts\n\nbelow. Hence, the present Regular Second Appeal is dismissed.All the pending miscellaneous applications, if any, are disposed\n\nof, in view of the aforesaid judgment.19.01.2021                                     (ANIL KSHETARPAL)\nPawan                                                JUDGE\n\n             Whether speaking/reasoned:-              Yes/No\n\n             Whether reportable:-                     Yes/No\n\n\n\n\n                                5 of 5::: Downloaded on - 20-01-2021 05:54:13 :::