RSA Nos.2066-2067 of 1995 (O&M) - 1 -

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

101

1). RSA-2066-1995 (O&M)

Didar Singh (deceased) through LRs ...Appellant(s)

Vs.

Hardev Kaur (deceased) through LRs ...Respondent(s)

AND

2). RSA-2067-1995 (O&M)

Didar Singh (deceased) through LRs ...Appellant(s)

Vs.

Hardev Kaur (deceased) through LRs ...Respondent(s)

The date when the judgment is reserved: 12.03.2026

The date when the judgment is pronounced: 27.03.2026

The date when the judgment is uploaded on the

website:

27.03.2026

Whether only operative part of the judgment is

pronounced or whether the full judgment is

pronounced:

Full

judgment

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

Present:-Mr. Sukhandeep Singh, Advocate for the appellant(s).

Mr. Naresh Kaushal, Advocate for the respondent(s).

NIDHI GUPTA, J.

RSA-2066-1995 (O&M)

Present Second Appeal has been filed by the plaintiff against

the judgment of reversal; whereby suit filed by the appellant for joint

possession of suit land, although decreed by the learned Trial Court, has

RSA Nos.2066-2067 of 1995 (O&M) - 2 -

been dismissed by the learned First Appellate Court; and Civil Appeal No.

58 dated 29.10.1988 filed by defendant No.1 has been allowed.

RSA-2067-1995 (O&M)

Present Second Appeal has been filed by the plaintiff against

the judgment of reversal; whereby the suit filed by the appellant for joint

possession of suit land, although decreed by the learned Trial Court, has

been dismissed by the learned First Appellate Court; and Civil Appeal No.

27 dated 03.12.1988 filed by defendant No.2 has been allowed.

2. Both the above said Second Appeals are being decided by this

common order as both emanate from the same impugned judgment and

decree dated 10.03.1995, passed by the learned Additional District Judge,

Ludhiana; both second appeals emanate from the same Civil Suit No.

75/334-RBT dated 13.03.1986 filed by the appellant; both the appeals are

between the same parties; in respect of the same suit land; and facts and

issues involved in both the appeals are identical. For the sake of

convenience, facts are being drawn from RSA-2066-1995 titled as Didar

Singh (deceased) through LRs vs. Hardev Kaur (deceased) through LRs.

3. Brief facts of the case are that the appellant had filed civil suit

for “joint possession of suit land measuring 32K-5M out of land measuring

166K-2M situated at village Jatana Uncha, Tehsil Samrala, District

Ludhiana by way of cancellation of Civil Suit decree dated 08.11.1985

passed by Ld. Sub-Judge Samrala in favour of defendant no.1 by

defendant no.2 of the land measuring 16K-0M out of the total land

measuring 122K13M as the plaintiff and defendant no.2 being the son &

RSA Nos.2066-2067 of 1995 (O&M) - 3 -

father constitute Hindu Joint Family/Coparcenary property and the decree

is based on fraud/mis-representation, hence is void ab initio”.

4. It was pleaded in the plaint that plaintiff is the son of

defendant No.2 Jagir Singh son of Sucha Singh. Sucha Singh, grandfather

of the plaintiff was owner of land measuring 166K 2M. Pursuant to a

family arrangement, out of the said land measuring 166K 2M, Sucha Singh

had retained land measuring 43K 8M with him; and had transferred the

remaining land amongst his 5 sons equally i.e. 1/5

th

share each.

Accordingly, out of the said land, defendant No.2 Jagir Singh had got land

measuring 24K 12M. It was further averred that defendant No.2 and his

brothers had purchased shares of land of their sister Jaswant Kaur with

the income of the ancestral property. Thus, defendant No.2 was recorded

as owner of land measuring 32K 5M out of joint Hindu family ancestral

coparcenary property. It was further pleaded that Surjit Kaur, mother of

the plaintiff had died on 10.10.1978 leaving behind plaintiff and defendant

No.2. Therefore, plaintiff and defendant No.2 constitute joint Hindu

family; and suit property is their coparcenary property; and that the

plaintiff had acquired right in the same by virtue of his birth. It was further

pleaded that Hardev Kaur/defendant No.1 is a Brahmin lady, who is

married to one Prem Parkash. Prem Parkash is alive. Marriage of

defendant No.1 with Prem Parkash has not been dissolved by decree of

divorce. Therefore, defendant No.1 is legally wedded wife of Prem Parkash

and has borne kids from the loins of Prem Parkash. Therefore, defendant

No.1 has no relations with defendant No.2. Defendant No.1 had

RSA Nos.2066-2067 of 1995 (O&M) - 4 -

previously filed Civil Suit No. 245 of 1985 against defendant No.2 claiming

herself to be wife of defendant No.2 by misstating facts and also making

false statement. In the said civil suit No. 245 of 1985, defendant No.2 had

admitted the claim of defendant No.1; as a result of which collusive

decree dated 08.11.1985 was passed, and 16K of suit land was transferred

in the name of defendant No.1. It was contended that the said decree

being collusive is void ab initio.

5. It was further pleaded that the plaintiff had also previously

filed a Civil Suit No.223 of 1984 seeking permanent injunction restraining

defendant No.2 Jagir Singh from alienating the suit property, which had

been dismissed as withdrawn vide order dated 20.08.1985 on the

statement made by Jagir Singh admitting the nature of the suit property as

coparcenary, and undertaking that he will not alienate the same. Thus,

Hardev Kaur, defendant No.1 and Jagir Singh, defendant No.2, had made a

false statement to procure the Collusive Decree dated 8.11.1985, which

was passed on fraud and misrepresentation. Accordingly, present suit for

joint possession by way of cancellation of the said decree was filed on

13.03.1986.

6. Upon notice, defendants had appeared and filed separate

written statements, although through same counsel, resisting the suit of

the plaintiff. It was pleaded by the defendants that the disputed land was

not joint Hindu family property nor copacenary and was self-acquired

property of defendant No.2. It was further pleaded that defendant No.1 is

the legally wedded wife of defendant No.2 as Kareva marriage had taken

RSA Nos.2066-2067 of 1995 (O&M) - 5 -

place between them. It was further asserted that plaintiff had no locus to

file the present suit and to challenge the decree dated 8.11.1985 as the

plaintiff is living separately from defendant No.2 for the last 4 to 5 years

and, therefore, it does not constitute joint Hindu family or coparcenary.

7. Plaintiff had filed joint replication to the separate written

statements filed by the defendants; thereby denying the contentions

raised in the written statements, and re-iterating those made in the plaint.

8. On the basis of the pleadings of the parties, following issues

were framed by the Trial Court vide order dated 13.05.1986: -

“Issue No.1: Whether the suit is not maintainable in the

present form ? OPP

Issue No.2: Whether the plaintiff has no locus standi to

challenge the decree, dated 8.11.1985, and whether the

same is valid and legal? OPD.

Issue No.3: Whether defendant No. 1 is the legally wedded

wife of Jagir Singh? OPD.

Issue No.4: Whether the suit is bad for non joinder of

necessary parties? OPD.

Issue No.5: Whether the plaintiff and defendant No. 2 form a

joint Hindu Family and Co parcenary? OPP

Issue No.6: Whether the suit land is joint Hindu Family

Coparcenary property? If so its effect? OPP

Issue No.7: Relief.”

9. Upon appraisal of the pleadings and the evidence led by the

parties, the learned Sub Judge 1

st

Class, Samrala had decreed the suit of

the plaintiff vide judgment and decree dated 07.09.1988. Against the said

judgment, defendant No.1 Hardev Kaur had filed Civil Appeal No. 58 dated

RSA Nos.2066-2067 of 1995 (O&M) - 6 -

29.10.1988 titled as Hardev Kaur vs. Didar Singh and another; and

defendant No.2 had filed Civil Appeal No. 27 dated 03.12.1988 titled as

Jagir Singh vs. Didar Singh and another. Vide the impugned judgment and

decree dated 10.03.1995, the learned Additional District Judge, Ludhiana

had accepted both the said appeals and reversed the Trial Court

judgment. Hence, the present second appeals by the plaintiff.

10. It is inter alia submitted by learned counsel for the appellant

that it is admitted fact on record that the plaintiff is the son of defendant

No.2-Jagir Singh. Further it stands proved from judgment and decree Ex.

D7 and Ex. D8 respectively, that Jagir Singh got land measuring 24 Kanal

13 marlas alongwith his brothers in a family settlement with his father

Sucha Singh. From this it is proved that Sucha Singh did not treat the

property in dispute as his own and treated the same to be Joint Hindu

Family Property. Thus, the property which Sucha Singh gave in family

settlement was Joint Hindu Family Property of which plaintiff was one of

the coparcener. Thus, provisions of Section 8 of the Hindu Succession Act

1956 will not be applicable. The learned lower appellate court has not

considered this aspect of the matter. The lower appellate Court has

misread the plaint and evidence. In para 3 it specifically mentioned that

property is inherited from father to son right from Uttam Singh as shown

in the pedigree table reproduced in para 1 of the plaint.

11. Further plaintiff filed suit for permanent injunction

restraining defendant Jagir Singh from alienating etc. the suit land as the

suit land is ancestral property in the hands of Jagir Singh. The suit was

RSA Nos.2066-2067 of 1995 (O&M) - 7 -

dismissed as withdrawn in view of the undertaking given by Jagir Singh

that he will not alienate the suit land. Thus, it was admitted by Jagir Singh

that suit property is Joint Hindu Family Property.

12. Learned counsel further submits that vide the decree dated

08.11.1985, Hardev Kaur had received 16K 0M out of the land measuring

122K 13M which Jagir Singh and his brother had got by way of family

settlement. The learned trial Court has given a categoric finding that

Hardev Kaur is not the wife of Jagir Singh; and this finding has not been

upset by learned First Appellate Court. The decree dated 08.11.1985 has

been obtained by mentioning that Hardev Kaur is the wife of Jagir Singh.

In fact, this is the reason given by the defendant No.2 for giving the land

to Hardev Kaur. Thus, the said decree has been obtained by playing fraud

and mentioning incorrect facts which do not exist.

13. It is further submitted that Sucha Singh, father of Jagir Singh

during his lifetime, had partitioned the property amongst his sons with

the intention to give property to the family of each son. As such, the suit

property was ancestral in the hands of Jagir Singh. It is contended that

even as per the judgment and decree dated 02.02.1972 executed between

Jagir Singh and his father Sucha Singh, it is gathered that the suit property

was ancestral in nature.

14. Learned counsel vehemently submits that the ancestral

nature of the suit property is proved from the statement made by Jagir

Singh himself in the Civil Suit for permanent injunction bearing No.223 of

1984 filed by the appellant wherein Jagir Singh has admitted the nature of

RSA Nos.2066-2067 of 1995 (O&M) - 8 -

the suit property as coparcenary and has also undertaken not to alienate

the same. Consequentially, plaintiff has withdrawn the Civil Suit No. 223

of 1984 on 20.08.1985 Ex.P7 on the basis of the undertaking given by Jagir

Singh and the statement Ex.P14 made by him not to alienate the suit

property. It is contended that coparcenary nature of the suit property is

also admitted from the evidence of the witnesses examined by the

appellant. No doubt, the appellant had not produced any documentary

evidence to establish the ancestral nature of the suit property, however in

view of the voluminous oral evidence and witnesses examined by the

plaintiff, it is undisputed fact on record that the suit property was proven

to be Joint Hindu Family coparcenary. On the other hand, defendants had

failed to lead any evidence whatsoever to discount the said voluminous

evidence produced by the appellant. It is submitted that in fact, learned

counsel representing the defendants has himself admitted the

coparcenary nature of the suit property as noted in para 13 of the

judgment dated 07.09.1988 passed by learned Trial Court. It is submitted

that findings of the First Appellate Court holding that the suit land was not

proved to be coparcenary in nature, is contrary to the evidence on record

and passed in ignorance of the admission made by defendant No.2

himself. It therefore follows that the transfer of 16K of land made by Jagir

Singh in favour of Hardev Kaur by way of collusive decree dated

08.11.1985 cannot be sustained.

15. Ld. Counsel argues that from the above facts, the locus of the

plaintiff to maintain the present suit is also established. However, all of

RSA Nos.2066-2067 of 1995 (O&M) - 9 -

the above said facts and evidence have been totally overlooked by

Additional District Judge, Ludhiana, who has proceeded on conjectures

and surmises by reading the evidence in piecemeal and by ignoring

important evidence.

16. Learned counsel further submits that judgment of the

learned First Appellate Court cannot be sustained also on account of the

fact that no finding has been given in respect of marital status of

defendant No.1. It is submitted that Prem Parkash husband of defendant

No.1 had himself appeared as PW4 and had deposed that he is husband

of defendant No.1 and is still married to her and that their marriage is not

dissolved. It is contended that therefore, on the date of passing of

impugned decree dated 08.11.1985, defendant no.1 was still legally

married to Prem Parkash. The alleged Panchayati divorce Ex.D2 between

defendant No.1 and Prem Parkash was categorically denied by Prem

Prakash. It is submitted that evidence of PW4 when read alongwith

undertaking of Jagir Singh to the effect that he will not alienate the suit

land without legal necessity, amply establishes that suit land was ancestral

in nature and that Jagir Singh was not competent to transfer the same by

way of collusive decree in favour of defendant No.1. It is accordingly

prayed that the present Appeal be allowed; and the impugned judgment

and decree dated 10.03.1995 passed by learned First Appellate Court be

set aside.

17. Per contra, learned counsel for the respondents opposes

submissions made on behalf of the appellant and submits that very

RSA Nos.2066-2067 of 1995 (O&M) - 10 -

detailed reasoning had been given by the Ld. Lower Appellate Court for

setting aside the judgment and decree of the Ld. Court below. It is pointed

out that the learned first Appellate Court has recorded in para 14 of its

judgment that there is not iota of evidence on the record to prove the

land held by Jagir Singh or Sucha Singh was ancestral/joint family or co-

parcenery property. While passing the impugned judgment, ld. ADJ has

also made reference to the judgment of the Hon'ble Supreme Court as

well as Documents Ex. P15 that firstly no such admission qua nature of

property has been made by Jagir Singh; thereupon in para 20 onwards the

law has been referred to hold that even such type of admission is not

binding on him under law, as according to section 31 of the Evidence Act

the same are not the conclusive proof of the evidence. It is further

recorded that Jagir Singh acquired the property partly under the court

decree and partly by inheritance not as karta of his own family but as an

heir being son of his father and the same cannot be said to ancestral or

joint Hindu family property. It is also recorded that even if Hardev Kaur is

not accepted to be legally wedded wife of Jagir Singh even then Jagir

Singh being the sole owner of the suit property was competent to give a

part of it to her for any reason and on any ground. It is well settled that

every owner has a right to alienate his own property to any body he

wishes. In nutshell admittedly the plaintiff/appellant being Dominus litus

while pleading the property to be ancestral and Hindu joint family

property was under legal obligation to prove by way of producing positive

evidence in the form of documentation to prove the same. Having failed

RSA Nos.2066-2067 of 1995 (O&M) - 11 -

to do so, the entire property, which has come to the legal heirs by way of

judgment and decree Ex D7 dated 02.02.1972 and thereupon small piece

of land by natural succession becomes the self acquired properties of the

parties. Therefore, they are free to deal with the same without there

being legal impediment.

18. It is further submitted that there is no ambiguity, even

regarding the marital status of Hardev Kaur as the lower appellate court

has recorded that decree of divorce dated 19.04.1990 was made in favour

of Hardev Kaur by ld. ADJ Ludhiana. Even the marriage certificate dated

8.11.1994 issued by Registrar of Marriage depicting the marriage of

Hardev Kaur and Jagir Singh is on record. Even the voter list depicting

Hardev Kaur to be wife of Jagir Singh is also brought on record.

19. In the last it is submitted that the detailed/exhaustive

judgment dated 10.03.1995 passed by Ld. ADJ is the complete answer for

dismissing the suit where each and every aspect of the matter has been

considered and taken care of. It is accordingly prayed that the present

appeal is meritless and deserves to be dismissed.

20. No other argument is raised on behalf of the parties. I have

heard learned counsel and given my thoughtful consideration to the rival

submissions made on behalf of both the parties and perused the District

Courts record in minute detail. I find merit in the submissions advanced

on behalf of the appellant/plaintiff.

21. A perusal of the impugned judgment shows that the learned

First Appellate Court has non-suited the appellant primarily on the ground

RSA Nos.2066-2067 of 1995 (O&M) - 12 -

that the appellant was unable to prove that the suit land constitutes Joint

Hindu Family /coparcenary property. However, in holding as above,

learned First Appellate Court has ignored and/or misread vital evidence in

this regard. It is firstly to be seen that in para 13 of the judgment dated

07.09.1988 passed by the learned Trial Court, it is categorically recorded

that “Sh. S.S.Guron Advocate, learned counsel for the defendants has

argued that the present suit is not maintainable in the present form

because no coparcenar or son is entitled to partition the land during the

lifetime of his father. ………” From the above submission of the defendants

before the Trial Court it is clear that the two preliminary premises on

which the suit is proceeding, have been admitted by the defendants in-as-

much as it has been admitted that the suit land is coparcenary; and it has

been argued/admitted that therefore, during the lifetime of father i.e.

Jagir Singh, his son i.e. plaintiff Didar Singh could not have sought partition

of the suit property. Thus, there is a clear-cut admission on behalf of the

defendants themselves that the suit property being coparcenary could not

be partitioned during the lifetime of the father. Needless to say, admission

is the best evidence. It may also be clarified that the present suit is not for

partition of the coparcenary or joint Hindu Family property. Rather, by way

of the present suit, plaintiff has challenged the collusive decree whereby

joint Hindu family coparcenary property had been transferred by

defendant No.2 in favour of defendant No.1 without legal necessity. Thus,

first Appellate Court has ignored, that even the arguments/submissions

RSA Nos.2066-2067 of 1995 (O&M) - 13 -

put forth by the defendants is suggestive of the fact that the plaintiff and

defendant no.2 are coparceners in joint Hindu family.

22. In holding that the suit land is not joint Hindu family

coparcenary, learned First Appellate Court has ignored/misconstrued

other very vital evidence in the form of admission made by defendant

No.2 in the Civil Suit No. 223 dated 25.08.1984 titled as Didar Singh vs.

Jagir Singh filed by the present plaintiff for permanent injunction

restraining defendant/Jagir Singh from alienating and transferring the land

in suit at village Jatana. It is to be noted that in the said suit, the plaintiff-

appellant Didar Singh had filed an application under Order 39 Rule 2A CPC

for initiating contempt proceedings against Jagir Singh for disobedience

and breach of injunction. While dismissing the said application vide order

dated 28.11.1986 Ex.P9, the learned Sub Judge First Class Samrala had

recorded that the said contempt application was not maintainable as “The

record however shows that on 20.08.1985, defendant had made

statement that he would not alienate the land in the suit and on the said

statement of the defendant, the plaintiff has withdrawn the suit.” In the

aforesaid suit, defendant No. 2 Jagir Singh has made a statement dated

20.8.1985 Ex.P14, wherein he has admitted the claim of the plaintiff and

has undertaken that he will not alienate the suit property ‘without legal

necessity.’ Statement dated 20.08.1985 Ex.P14 reads as follows: -

“Statements of the parties were recorded. The defendant has

made a statement that he shall not alienate the suit land

through sale, mortgage, etc., without legal necessity. In view

of this undertaking given by the defendant, the plaintiff has

RSA Nos.2066-2067 of 1995 (O&M) - 14 -

withdrawn the suit. Accordingly, the suit is dismissed as

withdrawn. File be consigned to the Record Room. The parties

are left to bear their own costs.”

23. On the basis of the said statement, the said Civil Suit No. 223

of 1984 was dismissed as withdrawn by the Civil Judge vide

judgment/decree dated 20.08.1985 Ex.P10. Needless to say, Jagir Singh

undertook not to alienate Suit land ‘without legal necessity’, only because

suit land was ancestral. It is but trite that in no other eventuality, will the

occasion arise for such an undertaking of ‘legal necessity’, unless and until

the suit land is ancestral.

24. Thus, the reasoning of learned First Appellate Court to the

effect that in the said statement Jagir Singh “never admitted ancestral,

joint Hindu family or coparcenary nature of the property in his hand”, is

wholly incorrect. In this regard, the learned First Appellate Court has also

ignored the fact that the statement dated 20.8.1985 was made by Jagir

Singh in context of the suit land as mentioned in head note of the plaint of

Civil Suit No. 223 of 1984. In the head note of the said Civil Suit No. 223 of

1984 plaintiff has categorically averred that the suit land is joint Hindu

family and coparcenary. In the Head note of the CS-223-1984 prayer is for

“suit for permanent injunction restraining the defendant from alienating

and transferring the land in suit by way of sale, mortgage, gift and in any

other manner as the suit property is ancestral qua property in the hands

of Jagir Singh and forms Joint Hindu Family property being father and

son”. The entire headnote of Civil Suit No. 223 of 1984 reads as follows:-

RSA Nos.2066-2067 of 1995 (O&M) - 15 -

“Suit for Permanent Injunction restraining the

defendant from alienating and transferring the land in suit by

way of sale, mortgage. by way of gift and in any other way

the land measuring 24K-I0M out of total land 122K-13M i.e.

1/5th share out of total land comprised in Khewat No. 42

Khatauni No.65, Rect. No. 36 Killa Nos. 2/2(5-4), 3(8-0), 8(8-

0), 9(8-0), 10(8-0), 11(8-0), 12(8-0), 13(8-0), 18(8-0), 19(8-0),

20(8-0), Rect, No. 37 Kills Nos. 6(8-0), 7(7-3), 8(0-7), 14(3-2),

15(8-0), 16(7-0), 17(0-3), 25(3-14) as per jamabandi for the

years 1980-81, H.B. 298 situated at Village:Jatana Ucha

Tehsil: Samrala Distt. Ludhiana as the suit property is

ancestral qua property in the hands of Jagir Singh and forms

a Joint Hindu Family property and the parties forms a Joint

Hindu Family being the son and father.”

(Emphasis added)

25. Thus, the First Appellate Court has totally failed to appreciate

that in the Civil Suit No. 223 of 1984 plaintiff has sought relief of

permanent injunction in respect of ancestral property; which claim has

been admitted by the defendant no.2 vide his statement dated 20.8.1985

Ex.P14; whereby he has undertaken not to dispose of the suit property

without legal necessity. Clearly, therefore, above observation of the First

Appellate Court is based on patent misreading of the evidence.

26. Learned First Appellate Court has also failed to deal with the

factum that Nirmal Singh real brother of Jagir Singh had appeared as PW3

and had also proved that some of the properties had been inherited by

the brothers after death of their father Sucha Singh. PW3 had further

stated that “Jagir Singh is my real brother. Jagir Singh and all of us

RSA Nos.2066-2067 of 1995 (O&M) - 16 -

brothers have received land from our father. It is ancestral property of our

father.”. Learned first Appellate Court has also ignored that PW2

Bhupinder Singh Lambardar has also deposed to the same effect that suit

land was ancestral in nature. PW2, as Lambardar of village of parties also

admitted in his deposition ‘that plaintiff and defendant no.2 are joint and

no partition of their properties had taken place.’

27. From the above evidence, it is clear that the suit property

was ancestral in nature and could therefore, not have been transferred by

Jagir Singh in favour of Hardev Kaur without legal necessity, and benefit of

estate.

28. Relevant findings of the Trial Court in this regard are

contained in para 15 of the judgment dated 07.09.1988, which reads as

under: -

“15. It is no deny the fact that Didar Singh, plaintiff is the only

son of Jagir Singh, defendant No. 2. The contention of the

learned Counsel for the defendants is that Jagir Singh

defendant No. 2 had separate his son Didar Singh in

cultivation, mess and residence, and as such, he is no longer

the member of the Joint Hindu Family of the defendant No. 2.

Didar Singh has admitted that a house was given to him for

residence. There is not an iota of evidence to prove that an

inch out of Joint Hindu Family was given to Didar Singh. This

fact was admitted by Jagir Singh, defendant No. 2 who stated

that no document regarding partition was executed. The

alleged partition took place some 12/13 years ago as

deposed by Jagir Singh in his examination in chief while

appearing as D.W.3 in the opening lines. He was examined on

RSA Nos.2066-2067 of 1995 (O&M) - 17 -

13.10.1987. Thus, the year of the alleged partition comes to

74-75. In the year of 1974-75, the mother of Didar Singh was

alive. Perusal of her death certificate Ex. P7 reveals that she

died on 10.10.1978 at the village of the parties. This means

that the alleged partition took place during the life time of

the mother of the plaintiff. But according to Jagir Singh,

defendant No. 1 land held by the mother of the plaintiff was

given to him, which land is situated at village Tunghrali, This

statement of Jagir Singh, defendant No. 1 is incorrect. Jagir

Singh, defendant No. 1 was married with Surjit Kaur at village

Tunghrali, Didar Singh plaintiff inherited the estate of his

mother on her death as one of the legal heir of Surjit Kaur

deceased. Didar Singh plaintiff inherited that land in his own

right. The said land had nothing to do with the Joint Hindu

Family Property of Jagir Singh and his son Didar Singh,

because Surjit Kaur inherited that land from her parents. This

fact is proved from the Jamabandi for the year 1981-82 Ex.

D13 and also from document Ex. D14 Plaintiff has a joint vote

with Jagir Singh, defendant No. 1 as is evident from voter's

list Ex. P8. A voter's list is prepared by a public official in the

discharge of his duty and is presumed to be correct. A mere

separate residence by one of the coparcener is not sufficient

to hold that the coparcener living separately was separated

from the Joint Hindu Family unless proved by cogent and

convincing evidence. In AIR 1987 Madra 24, it has been held

that separate enjoyment for sake of convenience is no

partition. In AIR 1971 Supreme Court 1962 it has been held

that the presumption that members of Hindu Family are joint

is stronger in a case of a father and his sons. One who pleads

that a member has separated himself from the family has to

prove it satisfactorily. There is no evidence that the plaintiff

was separated by Jagir Singh, and was given share out of the

RSA Nos.2066-2067 of 1995 (O&M) - 18 -

joint Hindu Family property. Didar Singh, plaintiff has filed a

civil suit No. 223 of 1984 on 25.8.84 against his father Jagir

Singh, defendant seeking a decree for permanent injunction

to restrain Jagir Singh, defendant from alienating the

disputed property by way of sale or gift as the suit property is

ancestral qua the disputed property in the hands of Jagir

Singh and forms Joint Hindu Family property and the parties

form a joint Hindu Family being the son and father as is

evident from Ex. P10. copy of orders of the court of Shri K.S.

Bhullar, Sub Judge Ist Class, Samrala dated 20.8.1985. Jagir

Singh, defendant appeared in the above suit of the plaintiff

on 20.8.85 and made a statement admitting the Claim of

Didar Singh vide his statement certified copy of which is Ex.

P14, and Ex. P15. Had the plaintiff been not joint with the

defendant No. 2, he would not have made such a statement

on 20.8.85. He would have definitely stated that he had

separated Didar Singh and had not admitted him to be a

member of his joint family and had also not admitted the

nature of the property as co parcenery and Joint Hindu family

property Didar Singh has stated that his father Jagir Singh

inherited the property from his father and also got the same

through a decree from his father-in-a family settlement as is

evident from Ex. D7. Nirmal Singh PW3 is the real brother of

Jagir Singh, defendant No. 1 He has also proved that Jagir

Singh and he himself and their other brothers inherited some

of the properties from their father after the death of S. Sucha

Singh, their father. He has also stated that they also got the

land in a family settlement from their father through a decree

of the court which was the ancestral property of their father.

Bhupinder Singh PW2 is a lambardar of the village of the

parties. He has deposed that the plaintiff and defendant No.

1 are joint and no partition of their properties had taken

RSA Nos.2066-2067 of 1995 (O&M) - 19 -

place. In view of my discussion, I hold that the plaintiff and

defendant No. 2 forms a joint Hindu Family and coparcenary,

and the suit land is their Joint Hindu Family and coparcenary

property. All these three issues are, therefore, decided in

favour of the plaintiff and against the defendants.”

29. Furthermore, Jagir Singh and his brothers had brought Civil

Suit no. 37 of 1972 for possession of land measuring 122K 13M in equal

shares by way of family arrangement against their father Sucha Singh. The

said suit was decreed uncontested in favour of the plaintiff therein i.e.

Jagir Singh vide judgment and decree dated 02.02.1972 Ex.D7 and Ex.D-8

respectively; pursuant to which Jagir Singh had got 24K 10M of land. It is

the claim of the plaintiff that the said land was ancestral in the hands of

Jagir Singh. The said fact has been admitted by PW3 Nirmal Singh brother

of Jagir Singh that this land measuring 24K 10M was ancestral. In this

regard, the relevant findings of the First Appellate Court in the impugned

judgment dated 10.03.1995, are as under: -

“16. No doubt during the life time of Sucha Singh, his sons

including the present appellant Jagir Singh brought suit for

possession of land measuring 122 Kanals 13 Marlas by

alleging that it had been given to them in equal shares about

2-1/2 years back before the filing of that suit No. 37 of 1972,

by way of family agreement and that suit was not contested

by Sucha Singh. He admitted the claim of his sons. The court

decreed that suit vide Judgment and decree dated 2.2.1972,

the copy of which is Ex. D-7. But from this, no such inference

can be drawn that property in the hands of Sucha Singh was

ancestral or of Joint Hindu family. He even could give his self

RSA Nos.2066-2067 of 1995 (O&M) - 20 -

acquired property under the family settlement, to his sons.

The copy of the plaint filed by his sons including appellant

Jagir Singh against Sucha Singh, has not been brought on the

file in evidence. Moreover, even no copy of mutation has been

produced to prove the acquisition of the suit land by Sucha

Singh from his father or grand father.

17. Undoubtedly, appellant Jagir Singh got 24 kanals 10

Marlas of land under the court Judgment and decree copies

of which are Ex. D7 and Ex. D8 dated 2.2.72 The mutation Ex.

D12 dated 21.11.76 was also sanctioned in his favour on the

basis of that Judgment and decree. The remaining 43 Kanals

9 marlas property has been acquired by him by inheritance

on the death of his father Sucha Singh which took place on

13.8.84 and mutation was sanctioned in his favour on 13-9-

1984. The property acquired by him under the court decree

cannot be held to be ancestral in his hands qua his son, the

respondent No. 1. Moreover, this acquisition has been made

by him on 2.2.72 when the decree was passed in his favour

and in favour of his other brothers, after enforcement of

Hindu Succession Act. He got this property as a son under the

family arrangement and not as Karta of his own family

consisting of him his son, respondent. He otherwise was to

get this property as an heir being son on the death of his

father Sucha Singh, under section 8 of the Hindu Succession

Act.

18. The part of the property as observed above, measuring 43

kanals 9 marlas had been acquired by appellant Jagir Singh

by inheritance on the death of his father Sucha Singh on

13.8.1984, after enforcement of Hindu Succession Act. This

acquisition has been made by him only as an heir being son

of his father under Section 8 of the Hindu Succession Act and

not as Karta of his own family.

RSA Nos.2066-2067 of 1995 (O&M) - 21 -

19. It is now well settled that property acquired by a Hindu

male from his own father after the enforcement of Hindu

Succession Act as an heir of Class I under Section 8 of the

Hindu Succession Act would be his self acquired and not

ancestral or Joint Hindu Family property in his hand qua his

own son. In this context reference may be made to

Commissioner of Wealth tax, Kanpur etc. etc. versus

xxxxxxxx Chander Sen etc. AIR 1986 Supreme Court 1753

wherein the Apex Court had been pleased to observe as

under:-

"Under the Hindu law the son would inherit the

property of his father as Karta of his own family. But the

Hindu Succession Act has modified the rule of succession. The

Act lays down the general rules of succession in the case of

males. The first rule is that the property of a male Hindu

dying intestate shall devolve according to the provisions of

Chapter II and Class 7 of the Schedule provides that if there is

a male heir of Class I then upon the heirs mentioned in Class I

of the Schedule. In interpreting provisions of Act it is

necessary to bear in mind the preamble to the Hindu

Succession Act. The Preamble states that if was an Act to

amend and modify the law relating to intestate succession

among Hindus. In view of the Preamble to the Act i.e. that to

modify the law, it is not possible when Schedule indicates

heirs in class I and only includes son and does not include

sons's son but does include son of a predeceased son to say

that when son inherits the property in the situation

contemplated by S.B. he takes it as karta of his own undivided

family. If a contrary view is taken it would mean that though

the son of a predeceased son and not the son of a son who is

intended to be excluded under S.S. to inherit, the letter could

by applying the old Hindu Law get a right by birth of the said

property contrary to the scheme outlined in S.B"

Therefore, the suit land held by appellant Jagir Singh cannot

be legally said to be ancestral, Joint Hindu family or

coparcenary property qua the respondent No. 1/plaintiff. No

RSA Nos.2066-2067 of 1995 (O&M) - 22 -

doubt earlier to the filing of the present suit, respondent no. 1

brought one suit for permanent injunction on 25.8.1984 for

restraining his father, appellant Jagir Singh from alienating

the suit property by alleging it to be ancestral, joint Hindu

family and coparcenary property to any third person and

obtained initially even temporary injunction against him. The

copy of the order is Ex. P12 dated 30.7.1986. However that

injunction later on was vacated vide order dated 13.11.1986

copy of which is Ex. P11. In that suit appellant Jagir Singh, no

doubt made statement, copy of which is Ex. P-15, But in that

statement he never admitted the ancestral, Joint Hindu family

or coparcenary nature of the property in his hand. He simply

stated as is evident from the reading of his statement that he

had not entered into any agreement for sale or mortgage

regarding the land No suit against him on the basis of any

agreement of sale is pending. He had got the suit land from

his father through suit and that his father got the land from

his own father through gift. This statement of his does not

contain any admission on his part as contended by the

learned counsel for the respondent no. 1. that the property in

his hand is coparcenary or Joint Hindu Family property and as

such is not of any help to the respondent No. 1 for proving

the ancestral, coparcenary or Joint Hindu Family nature of

the property.”

30. Clearly therefore, the above findings/reasoning of the first

Appellate Court are based on a piecemeal or misreading of the evidence

on record. The learned first Appellate Court has totally ignored the

evidence discussed hereinabove; including the headnote of the CS-223-

1984 for permanent injunction brought by the plaintiff against Jagir Singh;

RSA Nos.2066-2067 of 1995 (O&M) - 23 -

and the statement of Jagir Singh in the said CS-223-1984; as also the

evidence of PW3 Nirmal Singh who stated that they had got the land in a

family settlement from their father through a Court decree “which was

ancestral property of their father.”

31. In fact, evidence of PW2 Bhupinder Singh Numberdar and

PW3 Nirmal Singh has not been discussed at all by the first Appellate

Court; and headnote, prayer-clause, and statement of Jagir Singh in CS-

223-1984 have been totally misread. First Appellate Court has also ignored

the admission made by ld. counsel for the respondents as noted in para

13 of the trial court judgment that the suit land being coparcenary cannot

be partitioned during lifetime of Jagir Singh.

32. It needs no belabouring that first appeal is a valuable right

being a continuation of the original proceedings. As such, the first

Appellate Court is called upon to fully review the evidence and correct any

errors of law and fact. Under Order 41 Rule 31 CPC it is incumbent upon

the Court of first appeal to analyse all evidence in detail and give reasons

for accepting or rejecting the same. However, in the present case, as

noted above the first Appellate Court has ignored/misread vital evidence.

The Hon’ble Supreme Court in case of Somakka v. K.P. Basavaraj (SC) :

Law Finder Doc Id # 1999232, has held that:

“29.4 Very recently, this Court in 2022 (to which one of us,

Brother Abdul Nazeer, J. was a member) in Manjual and

others v. Shyamsundar and Others, (2022) 3 SCC 90,

reiterated the same view in para 8 thereof, which is

reproduced hereunder:

RSA Nos.2066-2067 of 1995 (O&M) - 24 -

"8. section 96 of the Code of Civil Procedure, 1908 (for

short, `CPC') provides for filing of an appeal from the de-

cree passed by a court of original jurisdiction. Order 41,

Rule 31 of the CPC provides the guidelines to the appel-

late court for deciding the appeal. This rule mandates

that the judgment of the appellate court shall state

(a) points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or

varied, the relief to which the appellant is entitled.

Thus, the appellate court has the jurisdiction to reverse

or affirm the findings of the Trial Court. It is settled law

that an appeal is a continuation of the original proceed-

ings. The appellate court's jurisdiction involves a rehear-

ing of appeal on questions of law as well as fact. The

first appeal is a valuable right, and, at that stage, all

questions of fact and law decided by the Trial Court are

open for re-consideration. The judgment of the appellate

court must, therefore, reflect conscious application of

mind and must record the court's findings, supported by

reasons for its decision in respect of all the issues, along

with the contentions put forth and pressed by the

parties. Needless to say, the first appellate court is re-

quired to comply with the requirements of Order 41,

Rule 31CPC and nonobservance of these requirements

lead to infirmity in the judgment."

30. From the above settled legal principles on the duty, scope

and powers of the First Appellate Court, we are of the firm

view and fully convinced that the High Court committed a seri-

ous error in neither forming the points for determination nor

considering the evidence on record, in particular which had

been relied upon by the Trial Court. The impugned judgment of

the High Court is thus unsustainable in law and liable to be set

aside.

31. The next question which arises is that where the judgment

of the Appellate Court is being set aside on the ground of non-

RSA Nos.2066-2067 of 1995 (O&M) - 25 -

consideration of the evidence on record, the matter would nor-

mally be required to be remanded to the First Appellate Court,

whether in the facts and circumstances this case requires a re-

mand. In the facts and circumstances of the present case, we

find that the suit was instituted in the year 1991, more than

three decades ago; the evidence discussed by the Trial Court is

neither disputed nor demolished by the learned Counsel for the

respondent. As such, we do not find any good reason to re-

mand the matter to the High Court. We are of the view that in

order to put a quietus to the litigation and relieve the parties

from any further harassment, we set aside the judgment of

the High Court and confirm the judgment and decree of the

Trial Court to the extent it relates to item no. 3 of Schedule `A'

property described in the plaint, i.e. to say that the appellant

and the respondent would be entitled to V share each in the

said property. The Trial Court shall accordingly proceed to

draw out the proceedings for final decree of partition.

32. The appeal is accordingly allowed. There shall be no order

as to costs.”

33. Thus, judgment of the first Appellate Court cannot be

sustained for the above reasons.

34. It has further been contended on behalf of the respondents

that the impugned transfer of 16K 0M had been made inter se the

defendants. It has been contended that the said transfer has been made

by defendant No.2 in favour of defendant No.1 as the defendant No.1 was

a wife of defendant no.2 through kareva marriage. Again, the ld. First

Appellate Court has totally misread the evidence regarding this aspect of

the matter; and has wholly, completely, and erroneously held that consent

RSA Nos.2066-2067 of 1995 (O&M) - 26 -

decree dated 8.11.1985 was valid as decree of divorce dated 19.04.1990

was made in favour of Hardev Kaur; and marriage certificate dated

8.11.1994 was issued by Registrar of Marriage depicting the marriage of

Hardev Kaur and Jagir Singh is on record. However, these are all

subsequent events. It is to be seen that at the relevant time, viz at the

time of passing of the impugned consent decree dated 8.11.1985,

defendant no.1 Hardev Kaur was still legally wedded wife of Prem Prakash.

35. The first Appellate Court has not considered that the impugned

consent decree dated 08.11.1985 (Ex.D-9/Ex.D-10) passed by Ld. Sub-Judge

Samrala in CS-245-1985 is a result of fraud/misrepresentation committed

upon the Court of law; and hence, amounts to nullity. The first Appellate

Court has ignored that defendant No.1 had filed Civil Suit No. 245 of 1985

titled as Hardev Kaur vs. Jagir Singh against defendant No.2 for declaration

claiming herself to be the wife of Jagir Singh and thereby laying claim to the

suit land on the basis of an Agreement dated 13.07.1985. The said claim of

defendant no.1 was completely incorrect as at time of filing of CS-245-1985,

Hardev Kaur was very much still legally wedded to Prem Prakash.

36. Further, the suit/decree dated 8.11.1985 is collusive which is

proved from the fact that in the said suit, Jagir Singh had filed written

statement admitting the claim of defendant No.1. Resultantly, vide the

impugned judgment and decree dated 08.11.1985 Ex.D9 and Ex.D10

respectively, suit of Hardev Kaur was decreed as a result of which 16K of

suit land was transferred in her name. Thus, the decree dated 8.11.1985 is

based on the incorrect premise that Hardev Kaur is the wife of Jagir Singh.

RSA Nos.2066-2067 of 1995 (O&M) - 27 -

37. The first Appellate court has totally ignored the fact that Prem

Parkash husband of defendant No. 1 had appeared as PW4 and had himself

deposed that he is husband of defendant No.1 and still married to her and

that their marriage is not dissolved. The alleged Panchayati divorce dated

9.8.1983 Ex.D2 between defendant No.1 and Prem Parkash was

categorically denied. PW4 has clearly stated that defendant No.1 is married

to him; she had given birth to his 4 children; that his marriage with

defendant no. 1 Hardev Kaur has not been dissolved so far and she is still

his wife; that he had not signed the alleged writing Ex.D2; and further

proved his affidavit Ex.P6. Therefore, on the date of passing of impugned

decree dated 08.11.1985, defendant No.1 was still legally married to Prem

Parkash. The decree of divorce dated 19.04.1990 made in favour of Hardev

Kaur; and marriage certificate dated 8.11.1994 have all been obtained

subsequently. Thus, consent decree dated 8.11.1985 was obtained by the

defendants on the basis of a blatant misrepresentation by them.

38. Furthermore, Defendants have relied upon the writing dated

9.8.1983/Ex.D2, which is the alleged Panchayati divorce between Prem

Prakash and Hardev Kaur, reduced in writing before Panchayat to contend

that Hardev Kaur is not wife of Prem Parkash. However, as per provisions of

Hindu Marriage Act, 1955, such writing has no legal binding. Moreover, Jagir

Singh was member panchayat at the relevant time and Prem Parkash did

not scribe/witness the said alleged dissolution deed. It is relevant to note

that defendant No.2 while appearing as DW3 has admitted in his cross-

examination that at the time of Panchayati writing Ex.D2, he was a member

RSA Nos.2066-2067 of 1995 (O&M) - 28 -

of Panchayat. This factor casts a serious shadow of doubt on the credence

of the Panchayati writing Ex.D2. Even otherwise, there is no legal value to

the writing Ex.D2 as the marriage between Hardev Kaur and Jagir Singh had

not been legally dissolved by any Court of law. As such, learned Trial Court

had correctly concluded that Prem Parkash husband of Hardev Kaur is alive

and lives in the village of the parties and that marriage between them is still

subsisting and that the alleged document Ex.D2 is a forged document as

Prem Parkash has denied his signatures on the same, which was prepared

by Jagir Singh Panch with the connivance of Panchayat. Thus, Hardev Kaur

was not found to be legally wedded wife of Jagir Singh as alleged. However,

this aspect of the matter has not at all been dealt with by the first Appellate

Court. As such, the impugned judgment is again hit by Order 41 Rule 31

CPC.

39. Contention of the respondents that plaintiff had no locus to

challenge the decree dated 08.11.1985 is also misplaced in view of the

fact that once the suit land is proved to be Joint Hindu Family and

coparcenary property, plaintiff has a right in the same by virtue of his

birth. Therefore, the plaintiff being coparcener has a right to challenge

the alienation.

40. Last but not the least, vide the impugned decree dated

08.11.1985 (Ex.D-9/Ex.D-10) right/title/interest in 16K 0M land was

created in favour of defendant No.1 for the first time and thus, the said

decree was liable required to be compulsorily registered u/s 54 of the

Transfer of Property Act and also u/s 17 of the Indian Registration Act.

RSA Nos.2066-2067 of 1995 (O&M) - 29 -

The said decree has no binding effect in the absence of compliance of

aforesaid provisions of law. Further, the parties had not disclosed their

true status before the Court of law and misrepresented themselves as

husband/wife to claim collusive decree. Thus, as observed by Ld. Trial

Court that as per Section 40 r/w S.41 & 42 of the Indian Evidence Act,

even a third party can show that the said judgment was obtained by fraud

and collusion. However, even these aspects of the matter have not been

considered by the learned first Appellate Court while passing the

impugned judgment.

41. In this regard, relevant observations made by the ld. Trial

Court are in para 20 of the judgment dated 07.09.1988, are as under: -

“20. Next question to be determined is as to whether

the plaintiff has locus standi to challenge the decree dated

8.11.1985 suffered by his father, Jagir Singh, defendant No. 2

and in favour of Hardev Kaur, defendant No. 1 At the very

outset, it is mentioned here that vide my detailed discussion

on issue No. 1,5 and 6 it has been held that Didar Singh,

plaintiff and S. Jagir Singh, defendant No. 2 forms a joint

Hindu Family being the son and father respectively, and it has

also been held that the suit land is their Joint Hindu Family

and coparcenary property. Thus, I need not repeat the

discussion on the above point. Each coparcener is entitled to

joint possession and enjoyment of the family property. If any

coparcener is excluded from the joint possession or

enjoyment. he is entitled to enforce his right by a suit. In

A.I.R. 1988 Hon'ble Supreme Court page 576, Sunil Kumar

and another Versus Ram Parkash and others, has been held

that a coparcener has got a right to challenge the alienation

RSA Nos.2066-2067 of 1995 (O&M) - 30 -

and getting it set aside in a suit subsequent to the completion

of the alienation, but a coparcener has got no right to seek an

injunction to restrain the karta from alienation of the

property for legal necessity. Thus, in view of the above

judgment, Didar Singh plaintiff, could challenge the alienation

through the present suit. A certified copy of the judgment and

decree under attack is Ex. D9 and D.10. A perusal of the

judgment Ex. D9 reveals that Hardev Kaur alleging herself to

be the wife of Jagir Singh, filed the suit for declaration on the

basis of an agreement dated 13.7.1985 claiming the suit

land. A dispute arose between them as per Ex. D9, and the

said dispute was resolved through the intervention of the

relatives of the parties, Jagir Singh, defendant filed written

statement admitting the claim of Hardev Kaur and also made

a statement to that effect. This led to the passing of the

impugned decree and judgment, certified copies of which are

ex. D10 and D9 respectively. Section 40 read with Section 44

of the India Evidence Act, 1988 makes it evident that Under

Section 40 the previous judgments are relevant to bar a

second suit or trial.

That would ordinarily be between the same parties. It is

under Section 41 and 42 of the Indian Evidence Act, 1908

when the judgment is relevant that even a third party can

show that the same was delivered by a court not competent

to deliver it or that it was obtained by fraud or collusion. Next

question will be as to what is collusion. Collusion in judicial

proceedings is a secret arrangement between two persons

that one should institute a suit against the other in order to

obtain the decision of a judicial court for some sinister

purpose. It was so held by the Hon'ble Supreme Court in AIR

1964 page 1839 in a reported case titled as 'Rup Chand

Gupta Vs. Raghvanshi (Private) Ltd. and another. Thus, by

RSA Nos.2066-2067 of 1995 (O&M) - 31 -

applying the above law to the facts of the present case, it can

be safely said that Jagir Singh, defendant No. 1 simply

transferred the disputed property in the name of Hardev Kaur

defendant No. 1 by mis-stating that they are husband and

wife. The said transfer amounts to a gift of immoveable

property for a consideration not permitted under the law.

Transfer of immoveable property of the value of Rs.100/- or

upwards can only be made through a registered documents,

which has not been done in the present case. Thus, the

decree under attack is also violative of the provisions of

Section 54 of the Transfer of Property Act and also under

Section 17 of the Indian Registration Act, 1908. Hardev Kaur,

defendant No. 1 cannot claim herself to be the owner of the

disputed property on the basis of the impugned decree Ex.

D10 alone even there was no fraud or collusion in obtaining

the decree. Besides, the above, in the present case, it has

been fully proved that Hardev Kaur, defendant No. 1 and Jagir

Singh, defendant No. 2 colluded with each other to deprive

Didar Singh, plaintiff of his right in the disputed land. They

mis stated the true facts regarding their relationship with

each other before the court which passed the decree under

attack.

In view of my above discussion, it is held that Hardev

Kaur defendant No. 1 is not the legally wedded wife of Jagir

Singh defendant No. 2 and the decree dated 8.11.1985 is the

result of fraud and collusion between the them. Both these

issues are, therefore, decided against the defendants and in

favour of the plaintiff.”

RSA Nos.2066-2067 of 1995 (O&M) - 32 -

42. Thus, the Ld. First Appellate Court has reversed the findings

on Issue-1 merely on whims and fancies and has not at all dealt with all

the aforesaid findings/observations of the Ld. Trial Court.

43. In view of the above discussion, the present Regular Second

Appeals are allowed; and the impugned judgment and decree dated

10.03.1995 passed by learned Additional District Judge, Ludhiana is set

aside; and the judgment and decree dated 07.09.1988 passed by learned

Sub Judge 1

st

Class, Samrala is restored. Resultantly, the suit of the plaintiff

stands decreed.

44. Pending applications, if any, stand disposed of.

27.03.2026 (NIDHI GUPTA)

Divyanshi JUDGE

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No