PROFORMA FOR FIRST LISTING

SECTION _________

The case pertains to (Please tick/check the correct box):

 Central Act : (Title) -

 Section :

 Central Rule : (Title) ___

 Rule No(s): __

 State Act : (Title) __

 Section : ___

 State Rule : (Title) ___

 Rule No(s): ___

 Impugned Interim Order : (Date) ___

 Impugned Final/Decree : (Date) 28.04.2014

 High Court : (Name) Punjab & Haryana High Court at Chandigarh

 Names of Judges : Mr. Justice Rakesh Kumar Jain, J.

 Tribunal/Authority : (Name) ___

1. Nature of matter:  Civil  Criminal

2. (a) Petitioner/appellant No.1 : Dr. Ashok Goyal

(b) e-mail ID : [email protected]

(c) Mobile phone number : 9868909761

3. (a) Respondent No.1 : Arya Mitter and others

(b) e-mail ID : ___

(c) Mobile phone number : ___

4. (a) Main category classification : -

(b) Sub classification : -

5. Not to be listed before : N.A.

6. Similar/Pending matter : N.A.

7. Criminal Matters : N.A.

(a) Whether accused/convict has surrendered  Yes  No

(b) FIR No. ____ Date: _____

(c) Police Station : ____

(d) Sentence Awarded : __

(e) Sentence Undergone : __

8. Land Acquisition Matters : N.A.

(a) Date of Section 4 notification : __

(b) Date of Section 6 notification : __

(c) Date of Section 17 notification : __

9. Tax Matters : State the tax effect : N.A.

10. Special Category (first petitioner/appellant only) :

 Senior citizen  65 years  SC/ST  Woman/child  Disabled

 Legal Aid case  In custody

11. Vehicle Number (in case of Motor Accident Claim matters) : N.A.

12. Decided cases with citation : ___

Date :

AJAY KUMAR SINGH

AOR for petitioner(s)/appellant(s)

Registration No. 2022

 IN THE SUPREME COURT OF INDIA
(CIVIL /CRIMINAL APPELLATE JURISDICTION)
SLP (C)/SLP (CRL.)/CIVIL APPEAL/CRL APPEAL NO. OF 2014

IN THE MATTER OF:-

Dr. Ashok Goyal …..Petitioner

Versus

Arya Mitter and others … Respondents

OFFICE REPORT ON LIMITATION

1. The Petition is/ are within time.

2. The Petition is barred by time and there is delay of

_________ days in filing the same against order
dated ______________ and petition for Condonation
of ___________ days delay has been filed.

3. There is delay of ___________ days in re-filing the

petition and petition for Condonation of _________
days delay in re-filing has been filed.

BRANCH OFFICER

New Delhi
Dated :
 IN THE SUPREME COURT OF INDIA
[S.C.R. ORDER-XXI RULE 3(1)(a)
(CIVIL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION
(UNDER ARTICLES 136 OF THE CONSTITUTION OF INDIA)

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2014

(Arising out of the Impugned Judgement and final order
dated 28.04.2014 passed by the Hon'ble High Court of
Punjab and Haryana at Chandigarh in R.S.A. No. 4537 of
2013).

(WITH PRAYER FOR INTERIM RELIEF)

IN THE MATTER OF :

Dr. Ashok Goyal …..Petitioner

Versus

Arya Mitter and others … Respondents

WITH

I.A. No of 2014 Application for Condonation of delay in

filing Special Leave Petition

(P A P E R - B O O K)

(FOR INDEX: KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER : AJAY KUMAR SINGH

 INDEX

Sl.No. Particulars. Pages.

1. Office Report on Limitation. 'A'

2 Listing Performa A1- A2

3. Synopsis/List of Dates & Events. B–

4. Copy of judgment/order dated

28.04.2014 passed by the Hon'ble High
Court of Punjab and Haryana at
Chandigarh in R.S.A. No. 4537 of 2013

5. Special Leave Petition with Affidavit.

6. Annexure-P-1:
A copy of order of Trial Court dated
11.03.2011 passed by Addl.
Civil Judge (Jr. Divn.), Kurukshetra
in Civil Suit No. 177 of 2009

7. Annexure-P-2:
A copy of order dated 02.09.2013
passed by Additional District Judge,
Kurukshetra in Civil Appeal No. 81 of 2011

8. I.A. No of 2014
Application for Condonation of delay in
filing Special Leave Petition
 SYNOPSIS/ LIST OF DATES

That the brief facts leading to the filling of the present

appeal are that the Petitioner/plaintiff, Respondent

/defendant and their father Dharamvir constituted a

joint Hindu Family and they were governed by Hindu

Law. The Respondent/defendant No. 2 being the father

of Petitioner/plaintiff and defendant No.1 was the Karta

of the Joint Hindu Family. The Petitioner/plaintiff had

signed blank unstamped and stamped papers for the

civil litigation in various civil courts at Krukshetra and

Ambala. In the year 1972 when the Respondent/

defendant No.1 was the minor and whose date of birth

09.03.1956, the respondent/defendant No.2 purchased

the land measuring 33 kanal 12 Marlas situated at

village Thol, Tehshil Thanesar, District Kurukshetra in

his name.

The mother of the Petitioner/plaintiff and

respondent/defendant No.1 Sm. Swaran Lata (since

deceased) we also owner of ¼th share in the land

measuring 1 khwa No.770/991, Khatoni No. 930, 4

kanal out of 14 kanals 8 marlas khwa No.770/991,

khatoni no.930, 4 kanal our of 14 kanals 8 marlas

comprised in khewat no.846, khatoni No.1008 as per

jamabandi for the year 1995-96.

 Respondent No.1 exchanged the land measuring 0

kanal 5 marla out of khasra No. 4356/1506/2

comprised in khewat No.84, Khatoni No.108 with his

mother for the land measuring 5 marlas out of khasra

No.4506/3362(3-9) comprised in khewat No.770/911,

khatoni No.930s per jamabandi for the year 1995-96

and mutation No. 3106 as entered and sanctioned on

18.2.1986.

The joint Hindu Family constituted by the

petitioner/ plaintiff and respondent No. 1 and 2 were

owners of the above said property besides other

properties, movable and immovable. From the

income/funds of the other land of the family, land

measuring 33 kanal 12 marla was purchased in the

name of respondent No.1 by the respondent No.2 (the

karta of the Joint Hindu Family). The petitioner/plaintiff

being the coparcener in the Joint Hindu Family had a

right in the income from this land in question which

was purchased by respondent No. 2 who was the Karta

of the Joint Hindu Family and thus, the petitioner had

share in the said land.

Respondent No.1 in collusion with respondent

No.2 sold the land measuring 12 kanals comprised in

khewat No.85 Khatoni No. 109, Khasra No. 1507(8-0),

 1508(4-0) min, as per jamabandi for the year 1995-96

without legal necessity. The said sale deed is illegal, null

and void, ineffective, inoperative, nonest and is not

binding on the rights of the petitioner/plaintiff. The said

sale deed was neither executed by respondent No.1 in

favour of respondent No.3 with the consent of the

petitioner/plaintiff nor did he pay a single penny to the

petitioner from the said sale price of the land.

The petitioner /plaintiff is entitled to 1/3rd share in

the said property as well as in the sale price. The

respondent no.1 is further bent upon to alienate the

remaining land in the same manner to some other

strangers. Earlier respondent No.1 in collusion with

respondent No.2 sold land measuring 12 kanal out of 33

kanal 12 marlas to Raghbir Singh son of Sarwan Singh

resident of village Thol, District Kurukshetra vide

registered sale deed No.777 dated 30.1.2001 which is

required to be considered by this Hon’ble Court.

26.02.2004 & That the petitioner herein filed suit no. 177 of

05.08.2009 2009 for declaration with possession and

consequential relief of permanent injunction

against the respondent/ defendant seeking a

decree for declaration to the effect that

registered sale deed no. 893.1 dated

 30.01.2001 in respect of land measuring 12

kanal out of 33 kanal 12 marlas to Raghbir

Singh son of Sarwan Singh resident of village

Thol, District Kurukshetra and land

measuring 32 kanals comprised in Khewat

No. 3, Khatoni No. 6,Killa No. 43551506(8-0),

1507(8-0), 1508(8-0), situated at Village Thol,

Tehsil Thanesar, District Kurukshetra, vide

jamabandi for the year 1965-66, vide

registered sale deed No. 1217/1, dated

14.6.1972, from the funds of joint Hindu

Family. The mutation No. 3459 was also

entered and sanctioned on 16.7.72.

11.03.2011 Vide order of the date, the learned Trial Court

dismissed the Civil Suit No. 177 of 2009 by

ignoring the evidence on the record and

passed the judgment perverse to the evidence

and against the well settled principles of law.

A copy of order of Trial Court dated

11.03.2011 passed by Addl. Civil Judge (Jr.

Divn.), Kurukshetra in Civil Suit No. 177 of

2009 is being annexed herewith as

ANNEXURE P-1. (Page to )

02.09.2013 That aggrieved against the judgment and

decree dated 11.03.2011, the petitioner

herein preferred an appeal vide appeal no. 81

of 2011 before the learned Additional District

Judge. Vide order dated 02.09.2013 the Addl.

District Judge, Kurukshetra dismissed the

Appeal No. 81 of 2011 interalia holding that

partition between petitioner and the

respondent no. 1 & 2 were taken place on

03.12.1970 ignoring the fact and evidences

on record that the respondent/defendant has

failed to established that the partition was

taken place. A copy of order dated 02.09.2013

passed by Additional District Judge,

Kurukshetra in Civil Appeal No. 81 of 2011 is

being annexed herewith as ANNEXURE P-2.

(Page to )

28.04.2014 That aggrieved against the judgment and

decree dated 02.09.2013 passed by the Addl.

District Judge, Kurukshetra dismissing the

Civil Appeal No. 81 of 2011, the petitioner

herein preferred an Regular Second Appeal

vide RSA No. 4537 of 2013 before the Hon’ble

High Court at Chandigarh.

 The Hon’ble High Court vide its order

dated 28.04.2014 dismissed the said RSA

only on the ground that there is a concurrent

finding recorded by the courts below against

the petitioner herein.

.10.2014 Hence the present Special Leave Petition.

 IN THE SUPREME COURT OF INDIA
[SCR ORDER XXI RULE 3 (1) (a)]
(CIVIL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION
(UNDER ARTICLES 136 OF THE CONSTITUTION OF INDIA)
SPECIAL LEAVE PETITION (CIVIL) NO. ________OF 2014
IN THE MATTER OF:-

BETWEEN : POSITION OF PARTIES

In the High In this Hon'ble
Court Court
Dr. Ashok Goyal, son of Appellant Petitioner
Dharambir Goyal, son of Dr.
Parshanna Mal, resident of
Thol, Tehsil Thanesar, District
Kurukshetra

Versus

1. Arya Mitter son of Dr. Respondent Contesting

Dharambir son of No. 1 Respondent
Parshanna Mal resident No. 1
of Thol, Now resident of
7304/4, Sikul Kund
Road, Ambala City,
District Ambala.

2. Dr. Dharamvir son of Respondent Contesting

Parshanna Mal resident No. 2 Respondent
of Thol, Now resident of No. 2
7304/4, Sikul Kund
Road, Ambala City,
District Ambala.

3. Vikram Sangwan son of Respondent Contesting

Jaswinder Singh son of No. 3 Respondent
Sh. Sharvan Singh, No. 3
resident of Thol, District
Kurukshetra.

To,

The Hon'ble Chief Justice of India,

And His Companion Justices of the
Supreme Court of India, New Delhi
 The humble Petition of the
Petitioners above-named;

MOST RESPECTFULLY SHOWETH:

1. The petitioner is filing the present petition seeking

Special Leave to Appeal against the Impugned and

final order dated 28.04.2014 passed by the Hon'ble

High Court of Punjab and Haryana at Chandigarh in

R.S.A. No. 4537 of 2013 whereby the Hon'ble High

Court was pleased to dismiss the same.

2. QUESTIONS OF LAW:

The following questions of law arise for consideration

by this Hon'ble Court:

(i) Whether the impugned judgments and decrees have

been passed by the courts below are perverse to the

evidence available on the file?

(ii) Whether the non-production of the best evidence

available with the respondents, amounts to

withholding of best evidence and then whether the

adverse inference is to be taken against the

respondents as per provisions of evidence Act?

(iii) Whether the courts can give the finding regarding

bonafide purchaser when no such plea was taken in

the written statement?

(iv) Whether the impugned judgment and decrees suffer

from perversity and liable to be set aside?

3. DECLARATION IN TERMS OF RULE 3(2):

The petitioner states that no other petition for

Special Leave to Appeal has been filed by him

against the impugned Judgment and final order

dated 28.04.2014 passed by the Hon'ble High Court

of Punjab and Haryana at Chandigarh in R.S.A. No.

4537 of 2013.

4. DECLARATION IN TERMS OF RULE 5:

The Annexures P-1 to P-2 produced alongwith the

SLP are true copies of the pleadings/documents,

which formed part of the records of the case in the

Court/Tribunal below against whose order the Leave

to Appeal is sought for in this Petition.

5. GROUNDS:

Leave to Appeal is sought on the following grounds.

A) That this Hon’ble Court may please appreciate that

the joint Hindu Family constituted by the petitioner/

plaintiff and respondent No. 1 and 2 were owners of

the above said property besides other properties,

movable and immovable. From the income/funds of

the other land of the family, land measuring 33

kanal 12 marla was purchased in the name of

 respondent No.1 by the respondent No.2 (the karta

of the Joint Hindu Family). The petitioner/plaintiff

being the coparcener in the Joint Hindu Family had

a right in the income from this land in question

which was purchased by respondent No. 2 who was

the Karta of the Joint Hindu Family and thus, the

petitioner had share in the said land.

B) That this Hon’ble Court may please appreciate that

the respondent No.1 in collusion with respondent

No.2 sold the land measuring 12 kanals comprised

in khewat No.85 Khatoni No. 109, Khasra No.

1507(8-0), 1508(4-0) min, as per jamabandi for the

year 1995-96 without legal necessity. The said sale

deed is illegal, null and void, ineffective, inoperative,

nonest and is not binding on the rights of the

petitioner/plaintiff. The said sale deed was neither

executed by respondent No.1 in favour of respondent

No.3 with the consent of the petitioner/plaintiff nor

he paid a single penny to the petitioner from the said

sale price of the land.

C) That this Hon’ble Court may please appreciate that

the petitioner/plaintiff is entitled to 1/3rd share in

the said property as well as in the sale price. The

respondent no.1 is further bent upon to alienate the

 remaining land in the same manner to some other

strangers. Earlier respondent No.1 in collusion with

respondent No.2 sold land measuring 12 kanal out

of 33 kanal 12 marlas to Raghbir Singh son of

Sarwan Singh resident of village Thol, District

Kurukshetra vide registered sale deed No.777 dated

30.1.2001 which is required to be considered by this

Hon’ble Court.

D) That this Hon’ble Court may please appreciate that

the courts below further wrongly given the findings

that the defendant/respondent No.3 is a bonafide

purchaser and he purchased that land after verifying

the jamabandies, wherein the name of the defendant

/respondent No.1 was reflecting as owner. The fact

is totally wrongly mentioned by the learned courts

below. There is no such plea of bonafide purchaser

taken by the defendant/respondent No.3 in his

written statement. As such the impugned judgment

and decrees passed by the courts below are liable to

be set aside.

6. GROUNDS FOR INTERIM RELIEF:

(i) That the Petitioner has this day filed the

accompanying Special Leave Petition before this

Hon'ble Court Against the impugned judgment and

 final order dated 28.04.2014 passed by the Hon'ble

High Court of Punjab and Haryana at Chandigarh in

R.S.A. No. 4537 of 2013.

(ii) That the facts and circumstances have been set out

in the aforesaid Special Leave Petition. The Petitioner

craves leave of this Hon'ble Court to refer to and rely

upon the contents of the same for the sake of

present grounds.

(iii) That the petitioner has a good prima facie case and

the balance of convenience is also in favour of the

petitioner.

(iv) No prejudice whatsoever would be caused to the

respondent(s) herein if the interim relief as prayed

for are granted and the petitioner (s) will suffer grave

harm and irreparable hardship if the interim relief

are not granted.

(v) That in the facts and circumstances of the case, it

would be just and proper that the order dated

28.04.2014 passed by the Hon'ble High Court of

Punjab and Haryana at Chandigarh in R.S.A. No.

4537 of 2013 may kindly be stayed.

7. MAIN PRAYER:

The Petitioner most respectfully prays that this

Hon'ble Court may pleased to:

(a) grant Special Leave to Appeal under Article 136 of

the Constitution of India, against the impugned

judgment and Final order dated 28.04.2014 passed

by the Hon'ble High Court of Punjab and Haryana at

Chandigarh in R.S.A. No. 4537 of 2013;

(b) pass any other order and further order or orders as

this Hon'ble Court may deem fit and proper in the

facts and circumstances of the case.

8. PRAYER FOR INTERIM RELIEF:

It is most respectfully prayed that this Hon'ble Court

may be pleased to:

(a) Grant ad-interim ex-parte stay of operation of the

judgment and order dated 28.04.2014 passed by the

Hon'ble High Court of Punjab and Haryana at

Chandigarh in R.S.A. No. 4537 of 2013; and

(b) Pass any other order and further order or orders as

this Hon'ble Court may deem fit and proper in the

facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY: FILED BY:

AJAY KUMAR SINGH

New Delhi Advocate for the Petitioner
Drawn on: .10.2014
Filed on : .10.2014
 IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CIVIL) NO. ________OF 2014

IN THE MATTER OF :

Dr. Ashok Goyal …..Petitioner

Versus
Arya Mitter and others … Respondents

CERTIFICATE

Certified that the Special Leave Petition is confined only to

the pleadings before the Court/Tribunal whose order is

challenged and the other documents relied upon in those

proceedings. No additional facts, documents or grounds have

been taken therein or relied upon in the Special Leave Petition.

It is further certified that the copies of the documents/

annexures attached to the Special Leave Petition are necessary

to answer the question of law raised in the petition or to make

out grounds urged in the Special Leave Petition for

consideration of this Hon'ble Court. This certificate is given on

the basis of the instructions given by the petitioner/person

authorised by the petitioner whose affidavit is filed in support of

the S.L.P.

NEW DELHI. FILED BY:

FILED ON: .09.2014

(AJAY KUMAR SINGH)

ADVOCATE FOR THE PETITIONER.
 IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CIVIL) NO. ________OF 2014
IN THE MATTER OF :

Dr. Ashok Goyal …..Petitioner

Versus

Arya Mitter and others … Respondents

AFFIDAVIT

I, Dr. Ashok Goyal, son of Dharambir Goyal, son of Dr.

Parshanna Mal, resident of Thol, Tehsil Thanesar, District
Kurukshetra at present at New Delhi, do hereby solemnly affirm
and declare as under: -

1. That I am the Petitioner of the above mentioned case and am

competent to swear to this affidavit.

2. That I have read the accompanying Special Leave Petition

containing pages to (paragraphs 1 to grounds A
to ), List of dates (Pages B to ), interlocutory
applications and understood the contents thereof. The facts
stated there in are true and correct from the record of the
case, which I believe to be true to the best of my knowledge
& belief.

3. That the Annexures are true copies of their respective

originals.

DEPONENT
VERIFICATION: -
Verified at New Delhi on this day of October 2014, I
the above named deponent, do hereby verify that the contents of
the above affidavit are true and correct to the best of my
knowledge & belief. No part of it is false and nothing material has
been concealed therefrom.

DEPONENT
 IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)

I.A. No. of 2014

In

SPECIAL LEAVE PETITION (CIVIL) NO. ________OF 2014

IN THE MATTER OF :

Dr. Ashok Goyal …..Petitioner

Versus

Arya Mitter and others … Respondents

APPLICATION FOR CONDONATION OF DELAY IN

FILING THE SPECIAL LEAVE PETITION

To

The Hon’ble Chief Justice of India

And His Companion Justices of the

Hon’ble Supreme Court of India.

The humble petition of the

Petitioner above-named;

MOST RESPECTFULLY SHOWETH: -

1. That the petitioner has this day filed the

accompanying Special Leave Petition before this

Hon’ble Court against the impugned judgment and

final order dated 28.04.2014 passed by the Hon'ble

High Court of Punjab and Haryana at Chandigarh in

R.S.A. No. 4537 of 2013.

2. That the facts and circumstances have been set out

in the aforesaid Special Leave Petition. The petitioner

craves leave of this Hon’ble Court to refer to and rely

upon the contents of the same for the sake of present

application.

3. That the delay has occurred in filing Special Leave

Petition because of the reason that after the

pronouncement of the impugned Judgment, the

certified copy of the impugned order was applied for

on 09.05.2014.

4. That the certified copy of the same has been received

on 21.05.2014. After receiving the certified copy it

was sent to the Petitioner’s Advocate at Chandigarh

for getting his opinion whether to file Special Leave

Petition. Then the Advocate took sometime for filing

the Special Leave Petition.

5. That therefore, the delay of days in filing the

instant Special Leave Petition is neither intentional

nor deliberate and was due to the reasons beyond the

control of the petitioner.

6. That the petitioner would suffer an irreparable loss

and injury and can not be compensated if the delay in

filing the Special Leave Petition is not condoned.

 PRAYER

It is, therefore, in the facts and circumstances of the

case and in the interest of justice, most respectfully prayed

that this Hon’ble Court may graciously be pleased to:-

(a) Condone the delay of days in filing the

accompanying Special Leave Petition against the

impugned judgement and final order dated

28.04.2014 passed by the Hon'ble High Court of

Punjab and Haryana at Chandigarh in R.S.A. No.

4537 of 2013;

(b) Pass any other order or orders as this Hon’ble Court

may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS YOUR

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY

New Delhi. FILED BY:

Filed on: -

(AJAY KUMAR SINGH)

ADVOCATE FOR THE PETITIONER.
 ANNEXURE -1

In the Court of Narender Pal Addl. Civil Judge (Sr. Div.),

Kurukshetra

Civil Suit No. 177 of 2009

Date of Instt. : 26.02.2004/5.8.2009.

Date of Decision: 11.03.2011.

Dr. Ashok Goyal, son of Dharmbir Goyal, son of Dr.

Parshanna Mal, resident of Thol, Tehsil Thanesar, District

Kurukshetra.

…Plaintiff

Versus

1. Arya Mittal son of Dharambir son of Parshanna Mal,

resident of Thol, now resident of 7304/4 Sukul Kund

road, Ambala City, District Ambala.

2. Dr.Dharamvir son of Parshanna Mal, resident of Thol,

now resident of 7304/4 Sukul Kund road, Ambala City,

District Ambala.

3. Vikram Sangwan son of Jaswinder Singh son of Sh.

Sharvan Singh resident of Thol District Kuruksheta.

…Defendants

Re: Suit for declaration with possession and

consequential relief of permanent injunction.

Present : Shri A.K. Bansal, Counsel of plaintiff.

 Shri. T.C. Verma, counsel for defendants no.1 and

Shri C.B. Sharma, counsel for defendant No.3

JUDGMENT

This is a suit for declaration with possession and

permanent injunction filed by plaintiff against the defendants

seeking a decree for declaration to the effect that sale deed

no. 893/1 dated 30.1.2001 in respect of land described in

para No.8 of the plaint, executed by defendant no.1 in favour

of defendant no.3 is illegal, null and void and not binding

upon the rights of the plaintiff alongwith with a decree for

joint ownership and possession to the extent of 1/3 rd share of

total land mentioned in para no. 3 of the plaint or to pay the

share out of the sale price to the extent of plaintiffs share

along with a decree of permanent injunction restraining

defendants from further alienating the suit land in any

manner.

2. The case of the plaintiff is that plaintiff/defendants no.1

and their father, defendant no.2 constitutes a joint Hindu

family and they are governed by Hindu Law. Defendant no.2,

being the father of plaintiff and defendant no.1, was the Karta

of the Joint Hindu Family. The plaintiff has signed some

blank unstamped papers for the civil litigation. It is alleged

that in the year 1972, when the defendant no.1 was the
minor, whose date of birth is 09.08.1956, then defendant

no.2 had purchase the land measuring 33 kanal 12 marla in

the name of defendant no. 1 comprised in Khewat No.1 min

Khatoni no.1, Killa No. 4356/1506 (1-12) and that measuring

32 kanals comprised in Khewat no.3 Khatoni no.6 Killa No.

4355/1506 (8-0),1507 (8-0), 1508 (8-0), 1509 (8-0) situated

in village Thol, Tehsil Thanesar, District Kurukshetra, vide

jamabandi for the ear 1965-66, vide registered sale deed no.

1217/1, dated 14.06.1972, from the funds of Joint Hindu

Family (hereafter be referred as suit land) it is alleged that

mother of the plaintiff and defendant No.1 Smt. Swaran Late,

now deceased, was also owner of the land detailed below:-

(i) 1/4th share of the land measuring 1 kanal,

comprised in Khewat No. 84, Khatoni No.10,

Kharsa No. 4356/1506/2;

(ii) Land measuring 3 kanal 9 marlas comprised in

kheat no. 770/911, Khatoni no. 980, Khasra No.

4506/3362(1-3);

(iii) Land measuring 4 kanal 9 Marals in Khewat No.

846, Khatoni NO. 1008, Khasra No. 3598/2 (4-12),

3599 (8-0), 3600/2 (1-16), vide jamabandi for the

year 1995-96.

It is averred that defendant no.1 exchanged the land

measuring 0 kanal 5 marlas out of Khasra no. 4356/1506/2

with his mother for land measuring 0 kanal 5 marlas out of

Khasra no. 4506/3362 (3-9) and mutation no.3106 was

entered and sanctioned on 18.02.1986. It is further averred

that Joint Hindu Family constituted by the plaintiff and

defendant No.1 and 2 was owner of the above said property

beside other properties, movable and immoveable and from

the income /funds of the other land of the family, land

mentioned in para no.3 of the plaint was purchased in the

name of defendant no.1 by defendant no.2. It is averred that

plaintiff is co-parcner in the Joint Hindu Family and he has a

right in the income from the land mentioned in para no.3. It

is alleged that defendant no.1 in collusion with defendant

no.2 has now sold the land measuring 12 kanal out of suit

land to defendant no.3, vide registered sale deed no. 893

dated 30.03.2001 and this sale is illegal, null and void and

not binding upon the rights of plaintiff because that sale deed

was executed without consent of plaintiff, nor a single penny

has been paid to the plaintiff out of sale price of land whereas

plaintiff was entitled for 1/3 rd price. It is further alleged that

defendant no.1 has also sold land to the extent of 12 kanals

out of 33 kanal 12 marla to Raghubir Singh side Sale Deed

No. 777 dated 30.1.2001 and this sale deed has also changed

by plaintiff vide civil suit no. 27/2001 titled as Ashok Kumar

Vs. Arya Mittar. It is alleged that now the defendant no.1 is

bent upon for further alienation of land mentioned in para

no.3 in order to deprive the rights of plaintiff. However,

defendants where requested not to do so but they are

adamant. Hence, finding no other alternative, the plaintiff has

approached to his Court with the prayer that his suit be

decreed.

3. Upon notice, the defendants appeared and filed their

written statement. Defendants no. 1 and 2 have filed their

joint written statement and key have taken some preliminary

objection to the suit of the plaintiff that same is not

maintainable; plaintiff has no locus standi; plaintiff is

stopped from filing of the present suit by his own act and

conduct because a family settlement took place on 1.10.1986

regarding the land and that settlement was signed by plaintiff

in the presence of defendants as well as other persons;

plaintiff ahs concealed the true and material facts from this

Court; plaintiff has not affixed proper court fee and the

present suit is misuse of process of law.

4. On merits it is averred that there is no joint family at

present and plaintiff is living separately and managing his

own business. He is not coparcener with the answering

defendants and a family partition took place between eh

parties on 31.12.1970 in which cash amount was divided

between the family members and second family settlement

was mad on 01.10.1986 vide which the ownership of land

including suit land was settled. It is also denied that plaintiff

has ever signed blank papers. It is reiterated that suit land

mentioned in para no. 3 of the plaint was purchased by

defendant no.1 with the help of cash amount which he

received in view of family settlement dated 31.12.1970.

Hence, defendant no1 was the absolute owner of the land

measuring 33 kanal 12 Marla. It is admitted that 5 Marla

land was exchanged by defendant no.1 with the mother but it

has been explained that exchange was cancelled in the year

1993. It is reiterated that suit land was purchase by

defendants no.1 from his own fund and he was exclusive

owner therefore, there was no need to take the consent form

the plaintiff at the time of sale in question and even there was

no liability of the defendants no.1 to pay any amount to the

plaintiff out of sale price. Denying the remaining averments of

plaint, dismissal of the suit was prayed for on behalf of

defendants.

5. Defendant no.3 has filed his separate written statement

and he has contested the suit by taking similar preliminary

objections as taken by defendants no.1 and 2 viz suit is not

maintainable; no locus standi; stopped by his own act and

conduct; not properly valued; non-joinder and mis-joinder;

suppressed the true and material facts and the true facts are

that the defendant no.1 sold the land measuring 12 kanal tot
eh answering defendant for a valuable consideration of Rs.

3,00,000/-. The sale deed was got scribed and was explained

to the parties and the witnesses concerned and they, after

understanding the same to be correct, signed it.

6. On merits, it is stated that the sale deed is legal and is

operative and is binding on the plaintiff and all concerned. It

is retreated that defendant no.3 paid Rs. 3,00,000/- to the

defendant no.1 before the Sub Registrar and after receiving

the sale consideration the defendant no.1 signed the sale

deed and answering defendant was very much competent to

sale the property concerned. Denying the remaining

averments of plaint, dismissal of the suit was prayed for on

behalf of defendants no.3.

7. Replication, to the written statement on behalf of

defendants not filed. From the pleadings of the parties

following issues were framed by this Court vide order dated

26.07.2010:-

1. Whether the plaintiff is entitled for a decree for

declaration as sprayed for? OPP

2. Whether the plaintiff is entitled for a decree for

possession as prayed for/ OPP.

3. If issues no.1 and 2 are proved in favour of the

plaintiff then as to whether the plaintiff is also

 entitled for permanent injunction as prayed for?

OPP.

4. Whether the suit is not maintainable? OPD.

5. Whether the plaintiff has no locus standi and

cause of action to file and maintain the present

suit? OPD.

6. Whether the plaintiff is estopped by his true and

material facts from this Court? OPD.

7. Whether the plaintiff has concealed the true and

material facts from this Court? OPD.

8. Whether the suit of the plaintiff has not been

properly valued for the purpose of Court fees and

jurisdiction? OPD.

9. Relief.

8. Thereafter, both the parties were allowed to lead their

evidence in order to discharge the onus from respective

issues. And in order to prove his caw the plaintiff has

appeared in the witness box as PW1 and tendered his

affidavit Ex. PW1/A. Randhir Singh, Clerk to Sh. R.K. Goel,

advocate ahs appeared as PW2 and thereafter, learned

counsel for plaintiff closed the plaintiffs evidence after

tendering following documents i.e. Ex. P1 is birth certificate

of Arya Mitre. Ex. P2 is certified copy of sale deed Vasika no.

1217/1 dated 14.06.1972 Ex.P3 is copy of mutation no. 2459

dated 16.07.1972. Ex. P4 is the copy of jamabandi for the

year 1995-96. Ex.P5 is copy of plaint in civil suit no. 110 of

2010. Ex. P7 is copy of sale deed no. 893/1. Ex. P8 to Ex.P16

are certified copies of documents from civil suit no.

190/2001.

9. On the other hand to rebut the case of the plaintiff,

defendants have examined Vikram Sangwan, the defendant

No.3 as DW1 and tendered his affidavit Ex. DW1/A and

following documents have been tendered by them i.e. Ex.D1

is certified copy of sale deed Vasika no. 893/1 dated

30.3.2001, Ex. D2 is copy of Jamabandi for the year 2005-6

Ex.D3 is copy of judgment dated 23.11.009 passed by this

Court in case titled Dr. Ashok Goyal Vs. Arya Mitter, erc. Ex.

D4 is decree sheet in this case. Ex. P5 is copy of jamabandi

for the year 1995-95, Ex.D6 is copy of jamabandi for the year

2000-01. The defendants no.1 and 2 neither produced oral

evidence nor any documentary evidence.

10. In this rebuttal of evidence, learned counsel for plaintiff

has tendered copy of appeal Ex. DX and copy of order dated

10.01.2001, Ex.DY and closed his rebuttal of evidence.

11. I have heard the learned counsel for the plaintiff as well

as learned counsel for defendants besides gone through the

entire case file carefully. My issue wise findings with reasons

are as under:-
ISSUES NO.1 TO 3:-

12. All these issues are interconnected with each other;

hence these are being taken simultaneously for discussion.

The onus to prove these issues was upon the plaintiff and he

was required to prove the sale deed no. 893/1 dated

30.3.2001 in respect of suit land measuring 12 kanal is

illegal null and void because suit land was the coparcnary

property and plaintiff and defendants nos.1 and 2. It was

further duty of plaintiff to prove that he is entitled or

ownership and possession of 1/3 rd share out of total land

measuring 3 kanal 12 Marlas being co-parcner and further as

a consequential relief, he is entitled for the relief of

permanent in junctions against defendants restraining them

from further alienation of the land measuring 33 Kanal 12

Marla.

13. In order to discharge the burden from the issues,

learned counsel for plaintiff has contended that land

measuring 33 kanal 12 maral, which was purchase by the

defendant no.2, the father of plaintiff and defendant no.1, in

the name of defendant no.1 as mentioned in para no. 3 of the

plaint, be treated as suit property of this case. Learned

counsel further contended that plaintiff and defendant no.1

and 2 from a Joint Hindu Family and they are coparcener

against each other and the suit land was Joint Property of all

three co-sharer. However, the same was purchased in the

year 1972 in the name of defendant no.1 with the help of

Joint Hindu Family funds and when this land was purchased

then defendant no. 1 is 09.03.1956. Hence, he had no

independent source of income for the purpose of purchase of

the land in question. It is further contended that present

defendant no.2 has filed a civil suit no. 110 of 2010. Ex. P6 in

the Court against plaintiff and other family members

including defendant no.1 wherein he has admitted in para

no.3 of the plaint of this case was the property of Joint Hindu

Family. Therefore, the defendant no.1 and 2 are estopped

from denying the coparcenary tights of the plaintiff and

further from claiming that suit property was the self acquire

property of defendant no.1. Learned counsel further

contended that defendant no.1 was not entitled to sell even a

single inch of suit land without the consent of plaintiff but he

has sold land measuring 12 kanal to defendant no.3 without

the consent of the plaintiff and not even a single pie has been

paid to plaintiff by defendant no.1 out of sale consideration. It

was contended that there was no legal necessity to sale the

joint land and the sale could not be interfered by the plaintiff

due to prevailing law. Hence, it was contended that suit of the

plaintiff be decreed and sale deed vasika no. 891/1 dated

30.3.2001 in favour of defendant no.3 be declared illegal, null

and void and plaintiff be declared owner in joint possession of

1/3rd land out of 33 kanal 12 marla and his share be

delivered to him or defendant no.1 be directed to pay 1/3 rd

price of sale consideration of land measuring 12 kanal tot eh

plaintiff and as a consequential relief the defendants be

restrained from alienating the suit land further.

14. On the other hand, learned counsel for defendants

vehemently argued that plaintiff and defendants no.1 and 2

do not constitute any Joint family and vide family settlement

effected in the year 1970, the cash amount lying with the

joint family as divided and with the help of that amount,

which came into the share of defendant no.1 the suit land

measuring 33 kanal 12 marla was purchased by him

separately from his own funds. Therefore, defendant no.1 was

absolute owner of this hand. He had sold 12 kanals land to

defendant no.3 who is bone fide purchaser for the valuable

consideration. It is contended that the plaintiff has been

miserably failed to prove that suit land measuring 33 kanal

12 marla was purchased with the help of joint fund, even

otherwise, there is no cogent evidence on record file to prove

the same as coparcenery property and there was no joint

family as alleged. It was contended by learned counsel for the

defendant no. 3 that averments contained in civil suit no. 110

of 2010 are not binding upon the rights of defendants no.3

and if the defendant no.2 has admitted the suit property

being the joint property even than the sale deed in favour of

defendant no. 3 cannot be set side. It was further contended

that mere filling of copy of plaint, Ex. P6 on record file done

not prove that suit property was not the self acquired

property of the defendant no.1 and further the defendant

no.2 has not appeared to prove the copy of plaint ex. P6.

Hence, it was prayed that the suit of the plaintiff be

dismissed.

15. Having heard the rival submission of both sides, this

Court is of the considered view that the main question for

consideration and determination before this court is as to

whether the suit land measuring 33 kanal 12 marla was

purchased by defendant no.1 out of joint Hindu Family or

not. Further, it is to ascertained as to whether the plaintiff is

entitled for decree for declaration to the effect that the sale

deed no.893/1 dated 30.3.2001 is liable to be declared illegal

null and void and he be declared aw owner in joint

possession of the suit land measuring 33 kanal 12 marla.

16. In order to discharge the burden from the issues, the

plaintiff has examined himself as PW1/A and he has

reiterated the contents of plaint in toto. When this witness

was cross-examined then he admitted that his name has not

been entered in the column of ownership qua land measuring

3 kanal 12 marla and he has no knowledge as to whether

defendant no.2 has acquired the possession of 12 kanal land

or not. When this witness was cross examined then he has

admitted that out of this khewat some land had been sold to

Raghubir Singh by defendant no.1 and he had filed a suit

against that sale deed which has already been dismissed.

However, an appeal is pending in the Court of Sh. Nazir

Singh, learned ADJ, Kurukshetra. He further admits that

earlier his appeal had been dismissed in default but now he

has filed an application for restoration. He further admits

that in the suit the copy of which is Ex.P6 defendant no.3 has

not been made party and initially he had not mentioned the

fact in the plaint that there was no legal necessity to sell the

suit land by defendant no.1. PW2 is Randhir Singh, clerk of

Sh.R.K.Goel, Advocated. This witness has stated that he was

working with Sh. R.K.Goel, advocate as clerk since 1.1.1991.

He has identified the signature of his advocate on Ex. P6

which is copy of plaint. When his witness was cross-

examined then he admitted that he does not know. Dr.

Dharamvir and plaint Ex.D6 had not been prepared by

counsel in his presence and he is not capable to understand

the contents of the plaint as the same are in English

language. He cannot tell the parties to the suit and he is not

a summoned witness rather he has been called by counsel for

plaintiff.

17. On the other hand, defendant no.3 namely Vikram

Sangwan has appeared as DW1 and he has reiterated the

contents of his written statement and specifically stated that

he is a bonafide purchase of the suit land i.e. 12 kanal and

he had purchased the same after going through revenue

record wherein the name of defendant no.1 was reflecting as

owner. When this witness was cross examined then nothing

material contradiction could be extracted from him.

18. During the course of arguments, learned counsel for

plaintiff his contended that defendant’s no.1 and 2 have

pleaded family partition wherein land measuring 33 kanal 12

marla came in the share of defendant no.1. Therefore this fact

in dispute that land measuring 33 kanal 12 marla was the

property of joint family property in view of admission. In

respect of validity of admission, reliance was placed on case

law authority titled as Ranjit Singh Vs. Surjan Singh, 2002

(3). C.C.C.138 (P &H), SIR 1965 (SC)364. It is further

contended that due to severance of status of joint family the

same has no effect on joint family property and the property

continues to be joint until partitioned. Reliance was placed on

case law authority AIR 19869SC).

19. This Court is in full agreement with the case law

authority cited (supra) but the law laid down therein, with

authority cited (supra) but the law laid down therein, with

due respect, is not helpful to the plaintiff in the given facts

and circumstances of this case because in this case, there is

no direct or clear admission on the part of the defendants

that land measuring 33 kanal 12 marla was purchase of the

suit the land in the year 1972 the defendant no.1 was of 16

years of age as per his birth-certificate Ex.P1 but the plaintiff

has not been able to show that land in question was

purchased by defendant no.2 from the funds of joint Hindu

Family property. Even otherwise the plaintiff has been failed

to disclose the source of fund as to which joint property was

yielding the profits. The plaint of the plaintiff is silent in

respect of specific mention of joint property. However, the

case of the defendant that in the year 1970 a family

settlement was arrived vide which the cash amount was

divided and from that cash amount land measuring 33 kanal

12 marla was purchased in the name of defendant no.1 and

he was absolute owner in possession of the same, has not

been rebutted by plaintiff by adducing any content evidence.

It is specific contention of the learned counsel for plaintiff

that when the defendant no.2 filed a suit and the copy of

plaint is Ex. D6 then he has specifically admitted that land

measuring 33 kanal 12 marla was the property of Joint

Hindu Family property and documents Ex. D6 has been

produced by PW2 and when there is a specific admission

then the defendant no.2 is estopped from denying the status

of the suit property and he cannot say that same was self

acquired property of defendant no.1. On perusal of plaint Ex.

D6 it has revealed that in para no.2 sub para (v) Dr.

Dharamvir Goel, who is defendant no.2 in the present suit

has mentioned the land 33 kanal 12 marla tobe joint Hindu

Joint Family property but his admission in this plaint is not

binding on the rights of defendant no.3 who has claimed

himself to be bonafide purchaser. First of al documents

Ex.D6 has not been proved in accordance with law by the

author of the document and mere examination of clerk of the

advocate is not sufficient to prove the contents as he has only

identified the signature of Sh. R.K.Goel, and in respect of

contents he has showed his ignorance.

If for the sake of the arguments, it is presumed that

defendant no.2 has admitted the status of the property to be

Joint Hindu Joint property even than this admission cannot

be binding upon defendant no.3 as no adjudication had been

done finally and mere a copy of plaint, which is Ex.D6, at this

stage cannot be taken into consideration to decide the nature

of property. The claim of the plaintiff is that he has sought a

decree for declaration to the effect that sale deed no. 893/1

dated 30.3.2001 be declared null and void and he be declared

owner in possession to the extent of 1/3 rd share of total land

measuring 33 kanal 12 marla and further in alternate, he has

claimed that defendants should pay share of price pertaining

to sit land. Meaning thereby that he has no direct grievance

against defendant no.3 rather he has only grievance against

defendant no. and 2 because they have not paid the plaintiff
ay share out of the sale process and only due to this reason,

the sale deed of defendant no.3 is not liable ti be declared,

null and void because, admittedly, he is bonafide purchaser

for a valuable consideration. Admittedly, the defendant no.1

was the exclusive owner in possession of the land measuring

33 kanal 12 marla by the dint of sale deed Ex. P2 and as per

jamabandi for the year 1995-96, Ex.P4, he was recorded

owner of the land this is why there was no need for defendant

no. to investigate further in respect of ownership of the suit

land. The documents Ex. D6 is not binding upon defendant

no.3 as he is not party to that suit and because the defendant

no.1 and 2 have not led their oral and documentary evidence

in this case therefore, possibility that they might have

colluded against the defendant no.3 cannot be ruled out

when it is held that defendant no.3 is bonafide purchase of

suit property then it is not material as to what was the nature

of the suit property.

20. One thing more, which was argued by learned counsel

for plaintiff is that the plaintiff could not prevent the

execution of sale deed in question at that time because the

prevalent law was against him as no sale could have been

challenged by a coparcener unless and until the same is

completed by Karta, but this Court is not convinced with this

argument because admittedly defendant no.1 was not the

karta of the family and he was allegedly a coparcener.

Therefore there was no hindrance in the way of the plaintiff to

prevent the execution of sale deed qua suit property had the

same been joint property. Moreover, as per document Ex. P2,

the sale deed no. 1217 dated 14.6.197, the defendant no.1

has been exclusive owner and even if the purchase was

financed by defendant no.2 then the claim of the plaintiff is

hit under The Benami Transaction Act.

21. Apart from this, plaintiff has claimed that he be

declared owner in possession of the 1/3 rd land measuring 33

kanal 12 marla but as per his own admission, defendant no.1

had sold 12 kanal land out of this land to Raghubir Singh

and that sale deed was also challenged by plaintiff side civil

suit no.133 of 2008 and that suit has already been dismissed

by this court vide judgment dated 23.11.2009., therefore,

again the claim of the plaintiff in this case for share of 1/3 rd

ownership and possession is misconceived.

22. Keeping in view the above discussion, this court has

reached on a conclusion that the plaintiff has not been able

to prove that land measuring 33 kanal 12 marla was

purchased by defendant no.2 in the name of defendant no.1

from the income of joint property, and because the defendant

no.1 was having full authority to alienate the portion of land

in favour of defendant no.3 against a valid sale consideration

as well as injunction can be issued in favour of plaintiff.

Hence, issues no.1 to 3 are decided against the plaintiff and

in favour of defendants.

ISSUES NO.4 TO 8

23. The onus to prove all these issues was upon defendants

and they were required to prove that the present suit is not

maintainable’; plaintiff has no locus standi to file the present

suit; plaintiff is estopped by his own act and conduct from

filling the present suit; plaintiff has concealed true facts from

the court and suit of plaintiff has not property valued for the

purpose of court fees and jurisdiction, but these issues have

not been pressed during the course of arguments and no

specific evidence is produced to discharge the burden from

these issues. Hence, all these issues are decided against the

defendants.

RELIEF:-

24. As a sequel to my findings, especially on issue no.1 to 3,

the net result is that the suit of the plaintiff fails and the

same is hereby dismissed with costs. Decree sheet be

prepared accordingly and file be consigned to record room

after due compliance.

Announced in Open Court: Sd/-

11.3.2011 (Narender Pal)

Addl.Civil Judge (Sr. Divin.)

Kurukshetra 11.03.2011.
Note: All the pages of this judgment have been checked and

signed by me.

Sd/-

(Narender Pal)

Addl.Civil Judge (Sr. Divin.)

Kurukshetra 11.03.2011.

// TRUE COPY //
 ANNEXURE P-2

In the court of Arun Kumar Singal, Addl. District Judge,

Kurukshetra

Civil Appeal No. 81 of 2011

Computer ID No.060400009482011

Date of Institution: 19.4.2011

Date of Decision: 2.9.2013

Dr.Ashok Goyal, aged 60 years, son of Dharambir Goyal son

of Dr. Parshanna Mal, resident of Thol, Tehsil Thanesar,

District Kurukshetra

…Plaintiff-appellant

Versus

1. Arya Mitter, aged 55 years, son of Dr. Dharambir son of

Parshanna Mal, resident of Thol, now resident of

7304/4 Sukul Kund Road, Ambala City, District

Ambala;

2. Dr. Dharamvir, aged 82 years, son of Parshanna Mal,

resident of Thol, now resident of House No.7304 Sukul

Kund Road, Ambala City, District Ambala;

3. Vikram Sangwan, aged 45 years, son of Jasvinder Singh

son of Sharvan Singh, resident of Thol, District

Kurukshetra.

…….Defendants-respondents
 Civil Appeal under section 96 of the Code of

Civil Procedure against the judgment and

decree dated 11.3.2011 passed by the court

of Shri Narender Pal, the then Addl. Civil

Judge (Senior Division), Kurukshetra, vide

which the suit of the plaintiff-appellant has

been dismissed.

Present: Shri Ashok Bansal, Advocate for the appellant

Shri R.K.Goel, Advocate for respondent No.1

Shri Joginder Singh, Advocate for respondent No.2

Shri C.B.Sharma, Advocate for respondent No.3

JUDGMENT:

This appeal has been preferred by the plaintiff-

appellant against the judgment and decree dated 11.3.2011

passed by the court of Shri Narender Pal, the then learned

Addl. Civil Judge (Senior Division), Kurukshetra, vide which

the suit of the plaintiff-appellant has been dismissed.

2. In brief the case of the plaintiff is that plaintiff,

defendant and their father Dharamvir constituted a Joint

Hindu Family and they were governed by Hindu Law. The

defendant No.2 being the father of plaintiff and defendant

No.1 was the Karta of the Joint Hindu Family. The plaintiff

had signed blank unstamped and stamped papers for the

civil litigation in various civil courts at Kurukshetra and

Ambala. In the year 1972 when the defendant No.1 was the

minor and whose date of birth was 9.3.1956, the defendant

No.2 purchased the land measuring 33 kanal 12 marlas

situated at village Thol, Tehsil Thanesar, District

Kurukshetra in his name. The mother of the plaintiff and

defendant No.1 Smt. Swaran Lata (since deceased) was also

owner of 1/4th share in the land measuring 1 kanal

comprised in khewat No.84, khatoni No.108, 3 kanal 9

marlas, khewat No.770/991, khatoni No.930, 4 kanal out of

14 kanals 8 marlas comprised in khewat No.846, khatoni

No.1008 as per jamabandi for the year 1995-96. The

defendant No.1 exchanged the land measuring 0 kanal 5

marla out of khasra No.4356/ 1506/2 comprised in khewat

No.84, khatoni No.108 with his mother for the land

measuring 5 marlas out of khasra No.4506/3362 (3-9)

comprised in khewat No.770/911, khatoni No.930 as per

jamabandi for the year 1995-96 and mutation No.3106 was

entered and sanctioned on 18.2.1986. The Joint Hindu

Family constituted by the plaintiff and defendants No.1 and 2

were owners of the above said property besides other

properties, movable and immovable and from the

income/funds of the other land of the family the land

measuring 33 kanal 12 marla was purchased in the name of

defendant No.1 by defendant No.2, the Karta of the Joint

Hindu Family. The plaintiff being the coparcener in the Joint

Hindu Family had right in the income from which land in

question was purchased by defendant No.2 who was the

Karta of the Joint Hindu Family and thus, he had share in

the said land. The defendant No.1 in collusion with defendant

No.2 had also sold the land measuring 12 kanals comprised

in khewat No.85, khatoni No.109, khasra No.1507(8-0),

1508(4-0) min, as per jamabandi for the year 1995-96

without legal necessity. The said sale deed is illegal, null and

void, ineffective, inoperative, nonest and is not binding on the

rights of the plaintiff. The said sale deed was neither executed

by defendant No.1 in favour of defendant No.3 with the

consent of the plaintiff nor he was paid even a single penny

from the said sale price of the land. The plaintiff is entitled to

1/3rd share in the said property as well as in the sale price.

The defendant No.1 is further bent upon to alienate the

remaining land in the same manner. The defendant No.3 is

also bent upon to alienate the land to some other strangers.

Earlier the defendant No.1 in collusion with defendant No.2

sold land measuring 12 kanal out of 33 kanal 12 marlas to

Raghbir Singh son of Sarwan Singh resident of village Thol,

District Kurukshetra vide registered sale deed No.777 dated

30.1.2001. The plaintiff has also challenged that sale deed in

the civil court. The defendants have been repeatedly

requested by the plaintiff to admit his claim but they are

adamant in refusal. Hence, this suit.

3. In their written statement, defendants No.1 and 2

took various preliminary objections regarding maintainability;

locus standi; estoppel; concealment of true and material

facts; valuation etc. On merits, it has been pleaded that there

was no Joint Hindu Family because the plaintiff was living

separately and was managing his own business. He had got

no concern with the answering defendants. The partition took

place between the parties on 31.12.1970 in which land and

cash amount was divided among the family members and

secondly the family settlement regarding the land was made

on 1.10.1986 in which the ownership of land including the

suit land was settled. The land measuring 33 kanal 12 marla

was purchased by defendant No.1 from his personal share of

Rs.28,005/- and the income from the land which had fallen

in his share. There was no need of consent of the plaintiff

regarding the execution of the sale deed because he had got

no concern with the suit property. Denying other averments

of the plaintiff, dismissal of the suit was prayed for.

4. In his written statement, defendant No.3 pleaded

that defendant No.1 sold land measuring 12 kanal to the

answering defendant for a valuable consideration of Rs.3 lac.

The sale deed was got scribed and was explained to the
parties and the witnesses concerned and they after

understanding the same to be correct signed the same. They

appeared before Sub Registrar, Thanesar and the Sub

Registrar explained the contents of the sale deed to the

parties and they signed the same after understanding it to be

correct. Denying other averments of the plaintiff, dismissal of

the suit was prayed for.

5. Replication was not filed. From the pleadings of the

parties, following issues were framed by the learned lower

court:-

1. Whether plaintiff is entitled for a decree of

declaration as prayed for? OPP

2. Whether the plaintiff is entitled for a decree

for possession as prayed for? OPP

3. If issue No.1 and 2 are proved in favour of the

plaintiff then as to whether the plaintiff is

also entitled for permanent injunction as

prayed for? OPP

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiff has no locus standi and

cause of action to file and maintain the

present suit? OPD

 6. Whether the plaintiff is estopped by his own

act and conduct from filing the present suit?

OPD

7. Whether the plaintiff has concealed the true

and material facts from this court? OPD

8. Whether the suit of the plaintiff has not been

properly valued for the purpose of court fees

and jurisdiction? OPD

9. Relief.

6. To prove his case the plaintiff has examined

himself as PW1, Randhir Singh Clerk as PW2 and tendered

into evidence certain documents. On the other hand

defendants examined Vikram Sangwan as DW1 and tendered

into evidence certain documents.

7. After hearing learned counsel for both the sides

and appreciating the evidence brought on record, the learned

trial court dismissed the suit of the plaintiff vide the

impugned judgment and decree.

8. Feeling aggrieved by the same, the plaintiff-

appellant has preferred the present appeal.

9. I have heard learned counsel for both the parties

and have scrutinized the evidence meticulously.

10. The learned counsel for the appellant has argued

that appellant and respondents No.1 and 2 form Joint Hindu

Family and they are coparceners against each other and suit

land was joint property of all the three co-sharers as the

same was purchased by the defendant No.2 in the name of

defendant No.1 with the help of joint funds of the Joint Hindu

Family and respondent No.1 was only Karta of the Joint

Hindu Family and a Karta of Joint Hindu Family has no right

to alienate the property of the Joint Hindu Family without the

consent of all the coparceners including the plaintiff or

without any legal necessity to be discharged by him in the

Joint Hindu Family. At the time of purchase of said land vide

sale deed No.1217/1 dated 14.6.1972 Ex.P2, the defendant

No.1 was minor as from birth certificate Ex.P1, it is proved

that date of birth of defendant No.1 is 11.3.1956. Also it is

proved on file that the suit land was purchased out of joint

fund of Joint Hindu Family and there is admission of the

defendants in their written statement as well as in civil suit

No.110 of 2010 titled Dr. Dharamvir Goyal vs Dr. Ashok

Kumar Goyal, a suit for declaration vide plaint Ex.P6 and it is

proved from the oral as well as documentary evidence that a

sale deed No.893/1 dated 30.3.2001 in respect of the suit

land copy of which is Ex.P7 is illegal, null and void.

11. The counsel for the appellant has further

submitted that from income tax return Ex.P8 to Ex.P16, it

also stands proved that property purchased in the name of

defendant No.1 was from the funds of Joint Hindu Family but

learned trial court has ignored all the documents and

evidence and wrongly decided issues No. 1 to 3 against the

appellant. The counsel for the appellant has relied upon

Lakhbir Singh vs Darshan Singh and others 2009(4) Civil

Court Cases 282 (P&H); Nagamma and others vs

G.Kamalamma and others 2009(2) Civil Court Cases 434

(A.P. (D.B.); Gajara Vishnu Gosavi vs Prakash Nanasahed

Kamble and others 2010(1) Civil Court Cases 598 (S.C.);

Subramonian vs Radhakrishnan 2004(2) Civil Court Cases

442 (Kerala) and P.Periasami vs P.Periathambi 1995(6) SCC

523 and prayed for acceptance of the appeal.

12. The counsel for the respondent has reiterated the

arguments as advanced by him before the learned lower court

and prayed for dismissal of the appeal.

13. After going through the arguments of learned

counsel for both the parties and evidence placed on record,

this court finds the arguments of learned counsel for the

appellant highly misplaced because defendant No.2 is father

of plaintiff Dr. Ashok Goyal and defendant No.1 Arya Mittar is

his brother and only Dr. Dharambir can be Karta of Joint

Hindu Family and not respondent No.1 and sale has been

effected by respondent No.1 in favour of respondent No.3 vide

sale deed Ex.P7 and defendant No.1 who is brother of plaintiff

cannot be held to be Karta of Joint Hindu Family. So, the

plea of the appellant that it was without any legal necessity is

no ground to set aside the sale deed.

14. Though, there is admission of Dr. Dharambir Goyal

in civil suit No.110 of 2010, copy of plaint of which is Ex.P6

but from this copy of plaint, it cannot be said that the

property has been held by the court to be Joint Hindu Family

Property because Ex.P6 is merely a plaint. Moreover, in that

plaint so many other properties are also involved. At least

plaintiff-appellant should have examined Dr. Dharambir

Goyal the plaintiff of civil suit No.110 of 2010 to prove that he

made the assertion that property was purchased with the aid

of Hindu Undivided Family Funds in the name of defendant

No.1. Moreover, the property has been purchased by

defendant No.2 in favour of defendant No.1 vide sale deed

Ex.P2 and it has not been purchased in his name or in the

name of Hindu Undivided Family. So, by no stretch of

imagination, it can be said that the property purchased vide

sale deed no.1217/1 dated 14.6.1972 Ex.P2 is Hindu

Undivided Family Property and defendant no.1 the brother of

plaintiff cannot be held to be Karta. The property was solely

in the name of defendant No.1 and he had got every right to

alienate the property in the manner he liked.

15. Even otherwise also, as per sale deed Ex.P2 the

land measuring 33 kanal 12 marla was purchased for

consideration of Rs.24,000/- and at that time the land was

mortgaged with one Darabara son of Ram Partap resident of

village Thol for a sum of Rs.11,500/- and only a

consideration of Rs.12,500/- was paid to the vendor of that

sale deed namely Kapoor Singh son of Sarupa son of Ram

Saran. resident of village Thol, Tehsil Thanesar and plaintiff

has no where alleged that he or his father got the land

redeemed after paying Rs.11,500 to Darbara son of Ram

Partap resident of Thol the mortgagee. So, it shall be

presumed that it was defendant No.1 who paid the mortgage

money of Rs.11,500/- to Darabra and got the land redeemed.

16. Further the defendant No.3 has come with the plea

that he is bonafide purchaser and he purchased the land

after verifying the ownership from the jamabandies, wherein

the name of defendant No.1 was reflecting as owner. Even

otherwise, if it is presumed that there is admission of

defendant No.2 in civil suit No.110 of 2010 that land

measuring 33 kanal 12 marla is Joint Hindu Family Property

but still that admission is not binding on the rights of

defendant No.3 who has claimed himself to be bonafide

purchaser. Thus, there is no reason to disbelieve the version

of defendant No.3 Vikram Sangwan that he is bonafide

purchaser for consideration and he is certainly required to be

protected. The suit filed by plaintiff making his brother and

father as defendants No.1 and 2 respectively challenging the

sale deed may be collusive one as neither defendant No.1 nor

defendant No. 2 have stepped into the witness box. Also

according to the defendants in the partition which took place

between the parties on 31.12.1970 the land and cash amount

was distributed amongst the family members and out of the

amount so received by defendant No.1 the land was

purchased in the name of defendant No.1 from his personal

share of Rs.28,005/-, which he had received in that partition.

Even the plaintiff has admitted that they are living separately.

Plaintiff when appeared in the witness box has admitted that

he was residing in Ambala and his brother was also residing

in Ambala and his brother had constructed a house in

Ambala and his brother was doing the business of medicine.

His father was living with his brother for the last 7-8 years.

So, when his brother is living separately then how plaintiff

can claim that he along with his brother and father form

Hindu Undivided Family. Thus, the plaintiff has failed to

show that the land measuring 12 kanal sold by defendant

No.1 to defendant No.3 was HUF property. Even otherwise,

defendant No.3 is not a party to civil suit No.110 of 2010

copy of which is Ex.P6 So, viewing from any angle, it can be

seen that the defendant No.1 was sole owner of the land

which he had purchased vide sale deed Ex.P7 and he sold 12

marla of land each to Raghbir Singh vide sale deed No.777

and vide sale deed No.894/1 copy of which Ex.P7 to

defendant No.3. Thus, defendant No.3 is the bonafide

purchaser. The learned trial court has rightly reached to the

conclusion that plaintiff has not been able to prove that land

measuring 33 kanal 12 marla was purchased by defendant

No.2 in the name of defendant No.1 from the income of joint

property. Also it has rightly been observed that the defendant

No.1 was having full authority to alienate the portion of the

land in favour of defendant No.3 against a valid sale

consideration and since defendant No.3 is bonafide

purchaser of 12 kanal land, so no decree for injunction can

be passed in favour of the plaintiff. The authorities relied

upon by learned counsel for the appellant are not applicable

to the case in hand. The findings of learned lower court are in

accordance with the law and does not call for interference in

appeal. Thus, the findings of learned lower court on all the

issues are affirmed. Consequently, the present appeal fails

and the same is hereby dismissed with cost throughout.

Counsel's fee is assessed as Rs.2100. Decree sheet be

prepared accordingly.
Announced in open court;

2.9.2013 (Arun Kumar Singal),

Addl. District Judge,

Kurukshetra

Note:- All the twelve pages of this judgment have

been checked and signed by me.

(Arun Kumar Singal),

Addl. District Judge,

Kurukshetra/2.9.2013

// TRUE COPY //
428. Period of detention undergone by the accused to be set

off against the sentence or imprisonment. Where an accused

person has, on conviction, been sentenced to imprisonment

for a term 1 , not being imprisonment in default of payment of

fine], the period of detention, if any, undergone by him during

the investigation, inquiry or trial of the same case and before

the date of such conviction, shall be set off against the term

of imprisonment imposed on him on such conviction, and the

liability of such person to undergo

1. Ins. by Act 45 of 1978, s. 31 (w. e. f. 18- 12- 1978 ).

imprisonment on such conviction shall be restricted to the

remainder, any, of the term of imprisonment imposed on him.

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH.

RSA No. 4537 of 2013

MEMO OF PARTIES

Dr. Ashok Goyal, son of Dharambir Goyal, son of Dr.

Parshanna Mal, resident of Thol, Tehsil Thanesar, District

Kurukshetra.

…..Appellant

Versus

1. Arya Mitter son of Dr. Dharambir son of Parshanna Mal

resident of Thol, Now resident of 7304/4, Sikul Kund

Road, Ambala City, District Ambala.

2. Dr. Dharamvir son of Parshanna Mal resident of Thol,

Now resident of 7304/4, Sikul Kund Road, Ambala City,

District Ambala.

3. Vikram Sangwan son of Jaswinder Singh son of Sh.

Sharvan Singh, resident of Thol, District Kurukshetra.

….Respondents

Chandigarh (Bhag Singh & (Sandeep Kaur)

Dated 03.10.2013 P-329/85 P-2200/2011

Advocates

(Counsel for the Appellant)

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH.

RSA No. 4537 of 2013

Decided on 28.4.2014

Dr. Ashok Goyal …..Appellant

Vs.

Arya Mitter and others ….Respondents

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN

Present: Mr. Bhag Singh, Advocate, for the appellant

Rakesh Kumar Jain,J: (Oral)

The plaintiff is in appeal against the judgment and

decree of both the Courts below by which his suit for

declaration with possession and consequential relief of

permanent injunction, has been dismissed.

The plaintiff has alleged that sale deed No.893/1

dated 31.1.2001 in respect of the land in dispute executed by

defendant No.1 in favour of defendant No.3, is illegal, null

and void and that he is owner to the extent of 1/3rd share in

the suit land which had been purchased by defendant No.2

through funds of Joint Hindu Family and as such, the

property had the trapping of ancestral nature.

 The Courts below have found that defendant No.2,

father of the plaintiff and defendant No.1 did not step into the

witness box to make the statement that the property in

dispute was purchased by him from the funds of HUF,

though in the name of defendant No.1. Until and unless, the

plaintiff proves that the property in dispute was purchased

from the funds of HUF, he had no competence to challenge

the sale deed executed by defendant No.1 in favour of

defendant No.2. The Courts below have recorded a

concurrent finding of fact and there is no evidence brought

on record to prove that the property in dispute was

purchased on 14.6.1972 vide sale deed Ex.P-2 from the funds

of HUF.

In view of the above, I do not find any merit in this

appeal and the same is hereby dismissed.

28.4.2014 (Rakesh Kumar Jain)

Judge

// TRUE COPY //