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MAHABIR & Anr v. GURDEV SINGH & Ors - RSA-2630-2004  RD-P&H 115 (12 January 2006)
REGULAR SECOND APPEAL NO. 2630 of 2004
DATE OF DECISION: January 24, 2006.
Mahabir and another
Gurdev Singh and others
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
PRESENT: Mr. Rakesh Gupta,
Advocate, for the appellants.
Mr. Rajesh Chaudhary, Advocate,
for the respondents - caveators
Appellants plaintiffs filed a suit for declaration, wherein they laid challenge to the judgment and decree dated August 5, 1992, suffered by their father alleging that the property being ancestral in nature, their father was not competent to transfer the same by way of collusive decree in favour of respondents No. 1 and 2, who are their nephews. Suit was decreed. Respondents succeeded in appeal. It is apparent from the records that the trial Court, by placing reliance upon excerpt Ex. PW4/A, came to a conclusion that the property measuring 68 Kanals was ancestral in the hands of father of the appellants. Appellate Court below opined that the finding to that extent was wrong as vide earlier judgment and decree Ex. D1 and Ex. D5, the property was partitioned. 1/4th
share each was given to the appellants and respondent No. 3 and 1/4th
share was kept by their father, as such it was his separate property and he was competent to transfer the same the way he liked.
This Court is of the view that the appellate Court below is justified to that extent. Judgment and decree Ex. D1 was produced in Court, after perusal of the same, it is revealed that the appellate Court below was right in observing that the coparcenary nature of the property had come to an end. It is further apparent from the judgment and decree Ex. D1 that as per allegations made by the appellants and respondent No. 3, in family settlement, 3/4th
share in the property in dispute was transferred to them by their father. Appellate Court below has also rightly held that respondents No. 2 and 3 being grand sons were having pre-existing rights in the said property, as such, it was not necessary to get the judgment and decree registered. Appellants have failed to prove on record that the decree in question was got executed by playing fraud upon their father Risala. No case is made out for interference in pure findings of fact. Dismissed.
January 24, 2006. ( Jasbir Singh )
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