JUDGMENT

Vikram Aggarwal, J. - This is plaintiffs appeal against the judgment and decree dated 20.01.2012 passed by the Court of Additional District Judge, S.A.S. Nagar, Mohali, dismissing the appeal preferred by the appellant no.1 (plaintiff) against the judgment and decree dated 09.08.2010 passed by the Court of Addl. Civil Judge (Sr. Division), Mohali, vide which the suit for declaration with possession and consequential relief of permanent injunction filed by the appellant No.1 (plaintiff) was dismissed.

2. For the sake of convenience and clarity, parties shall be referred to as per their original status.

3. The plaintiff (Sukhbir Singh) s/o defendant No.1 (Joginder Singh) instituted a suit for declaration to the effect that he was co-owner in joint possession in equal shares along with defendant No.1 and proforma defendant No.3 of the land (fully described in the plaint) situated in the revenue limits of Village Dhelpur, Tehsil Mohali, District Ropar and that the sale deed dated 08.01.2003 executed by defendant No.1 in favour of defendant No.2 was illegal, null and void, the same having been executed without any legal necessity. Consequential relief of permanent injunction restraining defendant No.2 from alienating the suit land and from ousting the plaintiff and proforma defendant No.3 from the suit land was also sought.

4. The case set up was that the suit land was ancestral property and, therefore, the alienation of the same by defendant No.1 in favour of defendant No.2 was illegal and arbitrary and that the sale deed was void and that the suit land being ancestral property, the plaintiff was a co-owner in joint possession of the same. It had been averred that the suit property had been inherited by defendant No.1 from his grandfather as a result of which the same was ancestral. It was averred that defendant No.1 was an alcoholic and had already sold some property out of the property in dispute without any legal necessity and had thereafter executed sale deed dated 08.01.2003 in favour of defendant No.2. It was averred that the said sale deed was without any consideration as well.

5. Defendants No.1 and 3 filed a written statement supporting the case of the plaintiff. However, defendant No.2 opposed the suit with the averments that the suit land was not ancestral property and that sale deed dated 08.01.2003 had been executed by defendant No.1 in favour of defendant No.2 for valuable consideration. It was averred that father of defendant No.1 had expired about one year prior to the execution of the sale deed and that defendant No.1 had taken a loan for arranging the last rites of his father. An agreement to sell dated 20.11.2002 had been executed in order to discharge the debt and pursuant there to, sale deed dated 08.01.2003 was executed.

6. In the replication, the averments made in the written statement were denied and those made in the plaint were reiterated.

7. From the pleadings of the parties, the following issues were framed:-

"1. Whether plaintiff is entitled for declaration as prayed for ? OPP

2. Whether plaintiff is entitled for permanent injunction as prayed for ? OPP

3. Whether the suit of the plaintiff is not maintainable in the present from ?OPD

4. Relief."

8. Parties led their respective evidence.

9. The trial Court dismissed the suit. The plaintiff No.1 preferred an appeal which too was dismissed by the Court of Additional District Judge, SAS Nagar, Mohali, leading to the filing of the instant appeal.

10. I have heard learned counsel for the parties.

11. Learned counsel for the appellants has submitted that both Courts gravely erred in dismissing the suit filed by the plaintiff despite the fact that it had been proved by way of evidence that the suit land was ancestral property. Learned counsel has referred to the impugned judgments and decrees and has submitted that the same are not sustainable. Reference to the relevant record was also made during the course of hearing.

12. Per contra, learned counsel representing respondent No.1 (defendant No.2) has submitted that there is no illegality in the impugned judgments and decrees. It has been argued that no evidence worth its name was led to prove that the suit land was ancestral property. Learned counsel has referred to the findings recorded by both Courts and has submitted that there is no illegality in the same warranting interference in second appeal.

13. I have considered the submissions made by learned counsel for the parties.

14. Concededly, to prove that the suit land was ancestral, the plaintiff was required to lead cogent evidence in the form of excerpts etc. However, nothing of the sort was done. In-fact, it came on record even during the oral evidence that the suit land had been mutated in favour of defendant No.1 by way of some document, details of which could not be given by the witnesses of the plaintiff.

15. Under the circumstances, both Courts rightly came to the conclusion that plaintiff had failed to prove the ancestral nature of the property and in the absence of the same, no fault could be found in the alienation of the suit land by way of sale deed dated 08.01.2003. As regards the sale deed also, it was held that the same had been executed for consideration which was duly mentioned in the sale deed itself and, therefore, there was no ground to set it aside. The First Appellate Court returned the following findings:-

"10. First of all, it has to be seen as to if the appellant/plaintiff has be seen as to if the appellant/plaintiff has been able to prove that the property in dispute was ancestral and coparcenary property in the hands of his father Joginder Singh. The learned counsel for the appellant/plaintiff has argued that copy of the jamabandi pertaining to the suit land for the year 1975-76 shows that the suit land was previously owned by Kapur Singh, the property was inherited by his widow Rattan Kaur and sons Baldev Singh alias Balbir Singh and Hazara Singh. He has further argued that copy of the jamaband pertaining to the suit land for the year 1995-96 shows that on the death of Balbir Singh alias Baldev Singh, the suit property devolved upon Harjinder Singh and Joginder Singh in equal share. Therefore it is made out that the suit property has devolved upon defendant No. 1 from his father and therefore, the property in dispute is the ancestral property in the hands of defendant No. 1. During the cross examination PW2 Karamjit Kaur mother of the plaintiff who has brought this suit on behalf of minor plaintiff being his next friend. Admitted that the mother of her husband is alive. Her husband is having sisters also. After the death of her father in law, the property in dispute was got mutated in the name of his sons only on the basis of some document PW3 Baljit Singh Sarpanch of the Village has also admitted that defendant No. 1 has got three sister and his mother is also alive. The plaintiff has not produced the mutation regarding the inheritance of Baldev Singh alias Balbir Singh sanctioned in favor of his sons. The plaintiff has relied upon merely on the basis of a note given in the copy of jamabandi regarding the sanction of mutation. It is made out that the plaintiff has intentionally with held the said mutation from the court Only from the said mutation, it could come on record as to on what basis the land was mutated in the name of the sons of deceased Baldev Singh alias Balbir Singh only. It is apparent that the said mutation had not been sanctioned on the basis of natural inheritance. Moreover Karamjit Kaur has admitted in her cross examination that the mutation was got sanctioned on the basis of some document It was necessary for the plaintiff to produce the said documents, may be will executed by Balbir Singh alias Baldev Singh on the basis of which mutation regarding his inheritance was sanctioned. When it was made out that the property was mutated in the name of the sons of deceased bequeathed Baldev Singh alias Balbir Singh on the basis of will the same cannot be said to be ancestral or coparcenary property in their hands, unless and until the recitals of the will indicate that the deceased bequeathed the said property to his sons as to in such a manner, the property would constitute a joint Hindu Family property. However said will has not been produced. An adverse inference should be drawn against die plaintiff/appellant on account of the with holding of the mutation and the will Under these circumstances, this court of the view that the learned trial court has rightly held that the property in the hands of defendant No. 1, once it is held that the property in dispute was the personal property of defendant No. 1, the plaintiff could not have challenged the sale deed executed by his father. It was argued by the learned counsel for the appellant/plaintiff that defendants did not produce any witness to the sale deed to prove the same. But the said contention is misconceived. Once three plaintiff has challenged the sale deed in question, he can not dispute the existence thereof. Defendant No. 1 alone could have challenged the sale deed on any other grounds, but defendant No. 1 did not file any suit challenging the sale deed. Rather even in the written statement, he has not denied that the sale deed was executed by him."

16. Learned counsel for the appellants has not been able to point out any infirmity or illegality whatsoever in the aforesaid findings warranting interference in second appeal.

In view of the same, the instant appeal is found to be devoid of merit and is accordingly dismissed.

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

Appeal dismissed

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