R.L.ANAND,J - (1.) BY this order I dispose of the appeal as well as the applications under Order 6 Rule 17 C.P.C. moved by the defendant-appellants. The appeal has been directed against the judgment and decree dated 15.10.1998 passed by Addl. District Judge, Rupnagar, who affirmed the judgment and decree dated 26.11.1992 passed by the trial Court which decreed the suit of the plaintiff-respondents for declaration as prayed for.
(2.) SOME facts can be noticed in the following manner :- Plaintiff Gurmail Singh filed a suit for declaration that he along with defendants No. 1 and 2 was owner in joint possession to the extent of 1/3rd share of the land comprised in khewat/khatauni and khasra numbers as described in the head note of the plaint situated in village Sohali and Tirtha and that the sale deed dated 10.10.1986 executed by defendants No. 3 and 4 is void, illegal and not binding upon him. The case set up by the plaintiff is that he and defendant No. 2 Jit Singh are real brothers and sons of Chet Singh alias Ghulla alias Gurmukh Singh son of Lalu. They constitute a joint Hindu family. The suit property in the hands of Chet Singh is ancestral, who inherited the same from his father Lalu alias Lal Singh. They have got share in the suit property by birth. The defendant No. 1 had no right to alienate the suit property in favour of respondent-defendants No. 3 and 4 except for legal necessity. The sale deed dated 10.10.1986 executed by defendant No. 1 in favour of defendants No. 3 and 4 is null and void and it does not bind the rights of the plaintiff, who is a co-sharer in the ancestral property. The suit was contested by the defendants on the ground that there was no joint Hindu family property in the hands of Chet Singh. They denied the other allegations levelled by the plaintiff and prayed for the dismissal of the suit. Defendants No. 3 and 4 also filed a separate written statement and they pleaded that they are the bona fide purchasers for consideration and thus the sale in question cannot be set aside. From the above pleadings of the parties, the following issues were framed :- 1. Whether the suit land is ancestral and coparcenary property ? OPP 2. Whether plaintiff is entitled to declaration prayed for ? OPP 3. Whether sale deed dated 10.10.1986 is null and void ? OPD 4. If issue No. 3 is proved, whether defendants No. 3 and 4 are bona fide purchaser for consideration ? OPD 3 and 4. 5. Relief.
(3.) THE parties led oral and documentary evidence is support of their cases and it was held by the Courts below the plaintiff and defendants No. 1 and 2 constitute a joint Hindu family and the property in question was the ancestral one in the hands of appellant No. 1 Chet Singh. It was also observed by the Courts below that the plaintiff had interest by birth in the suit property being a coparcenary and the sale deed dated 10.10.1986 is null and void and does not bind the interest of the plaintiff. The reasons for the dismissal of appeal are given in paras No. 12 to 21 of the judgment of the first Appellate Court, which are reproduced as under :- "12. The arguments of the learned counsel for the appellants that the excerpts Exs. P5 and P6 are inadmissible in evidence as Sadhu Ram, Special Kanungo, PW, who prepared the same was not examined on oath, cannot be accepted. It cannot be denied that the excerpts Exs. P5 and P6 are public documents, prepared by the public servant in official capacity. The presumption of truth attaches to the entries recorded therein under the Punjab Land Revenue Act. Therefore, these were not required to be proved like any other document by examining Special Kanungo on oath, before the trial Court. 13. Moreover, no objection regarding admissibility of these excerpts (Exs. P5 and P6) was taken when these were produced by respondent No. 1 in his own statement, on behalf of the appellants, by their counsel before the trial Court. Therefore, in the appeal for the first time such an objection cannot be allowed to be taken by the counsel for the appellants. Moreover, this objection is based on technicality i.e. procedure of admitting the document and, as such, the same deserves to be rejected having been raised at a belated stage. In this context, reference may be made to Kartar Singh v. The Collector, Punjab and others, 1996(1) R.R.R. 446 : 1995 PLJ 594, wherein objection regarding the admissibility of Missal Haqiat was raised at a belated stage and the same was rejected. It was observed by the Division Bench of our Hon'ble High Court that presumption of truth attaches to the Missal Haqiat under Section 44 of the Punjab Land Revenue Act. The objection that the document was not property admitted in evidence as there was no occasion for the appellant to rebut the entries in the document being based on technicality cannot be permitted to be raised at belated stage. 14. When respondent No. 1 produced both the excerpts, Exs. P5 and P6 and closed his evidence, the appellants did not make any application for calling the Kanungo who prepared the same, for cross-examination and for questioning the correctness of the entries made therein. No other evidence has been also adduced by them to prove that the entries made in the excerpts are factually wrong or incorrect. Therefore, these excerpts, cannot be held to be inadmissible and insufficient for proving that ancestral nature of the suit property in the hands of appellant No. 1 who is father of appellant No. 2 and also respondent No. 1. 15. Appellant No. 1 Chet Singh even himself has not stepped into the witness box before the trial Court to deny the inheritance of the suit property by him from his father Lalu alias Lal Singh. Simple saying of Jit Singh, Appellant No. 2, that the suit property is not ancestral and that it was purchased by his father Chet Singh, appellant No. 1, cannot be attached any credence for want of corroboration from the revenue record. He has not disclosed date, month or the year and the source from where the suit property was purchased by his father Chet Singh, appellant No. 1. Moreover, this plea has not even been taken by him and appellant No. 1 in their joint written statement. No sale deed or any revenue record has been produced for showing the purchase of the suit property by appellant No. 1 with his own funds from any person after the death of his father Lalu alias Lal Singh. 16. True, that in the written statement both the appellants have alleged that respondent No. 1 is separate in mess and worship from them for the last 20 years, but date, month or the year when this separation took place between them has not been disclosed by them. Even in the statement appellant No. 2 has not disclosed all these details. 17. The general principle is that every Hindu Family is presumed to be joint unless contrary is proved. There is also strong presumption in favour of brothers constituting Joint Hindu Family. In this context reference may be made to Bhagwan Dayal v. Reoti Devi, AIR 1962 page 287 and Bharat Singh and others v. Smt. Bhagirathi, 1966 Current Law Journal 183, wherein it has been by the ruled. 18. However, even if it is assumed for sake of arguments that appellants and respondent No. 1 are separate in mess and worship, still no presumption about the partition of the Joint Hindu Family/ancestral property between them can be inferred. Appellants have not even disclosed in the written statement or in the evidence the details of the properties which fell to the share of respondent No. 1 under the family settlement when residence and mess were separated between them and him (respondent No. 1). No such family settlement was ever got entered in the revenue record also by them. Therefore, it is difficult to conclude that respondent No. 1 has got no right, interest or share in the suit property which is ancestral/Joint Hindu Family property of the family having devolved on appellant No. 1 from the common ancestor. 19. In view of the discussion made above, the findings of the trial Court under issue No. 1 are affirmed. The validity of the findings of the trial Court on other issues, has not been assailed before me, on any ground. The respondents No. 2 and 3, who are the vendees of part of a suit land from appellant No. 1 through sale deed copy of which is Ex. DW4/A, have not filed any appeal challenging the validity of the impugned judgment and decree wherein the sale in their favour had been held to be without any legal necessity by the court. 20. Even counsel for the appellant has not been able to assail the findings of the trial Court that the impugned sale had not been effected for legal necessity by appellant No. 1, in favour of respondents No. 2 and 3, on any ground. In the sale deed no necessity for effecting the sale of the property had been recorded. 21. No doubt, Gurdev Singh, respondent No. 2, one of the vendees, in his statement before the trial Court as DW4 had stated that the vendor, appellant No. 1 needed money for household expenditure, expenditure, redemption of the ancestral land and construction of house, but no such recital exists in his sale deed. Therefore, no credence can be attached to his this statement. Moreover, no corroborative evidence has been also produced by him. He and his co-vendee Gulzar Singh, respondent No. 3, both have not even filed any appeal against the impugned judgment and decree vide which sale in their favour of land measuring 17 marlas through impugned sale deed, copy of which is Ex. DW4/A, has been set aside by the trial Court. Therefore, the findings of the trial Court on issues No. 2 to 4 are affirmed." ;