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Ravi Parkash & Anr v. Ram Phal & Anr - RSA-3333-2006  RD-P&H 8527 (13 October 2006)
C.M. No. 8213-C of 2006 and
R.S.A. No. 3333 of 2006
Date of Decision: 12.9.2006
Ravi Parkash and another
Ram Phal and another
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. S.R.Hooda, Advocate for the appellants.
AJAY KUMAR MITTAL, J.
This regular second appeal is directed against the judgment and decree dated 22.11.2000 passed by the lower appellate court vide which the judgment and decree passed by the trial court dated 2.5.2000 have been affirmed.
The facts as pleaded in the plaint are that the plaintiffs are the minor sons of defendant No.2-Om Parkash and are the members of Joint Hindu Family comprising of the plaintiffs and defendant No.2. They are the coparceners in all the ancestral properties owned by the Joint Hindu Family.
It was pleaded that defendant No.2 has sold the land in dispute measuring 7 kanals 19 marlas and 1/6 share in rasta measuring 9 marlas for a sale consideration of Rs.49,500/- vide registered sale deed dated 24.12.1986. It was further pleaded that their father had also executed mortgage deed dated 7.4.1986 for Rs.8,000/- in favour of Pale Ram and Raj Karan sons of Jage Ram without the knowledge of the plaintiffs. A prayer was made for granting decree for possession of the land in suit by declaring the impugned sale-deed dated 24.12.1986 made by their father as illegal, void and inoperative qua their rights.
Upon notice, defendant No.1 filed written statement by pleading that the plaintiffs are the sons of defendant No.2 but they do not form any HUF and that the plaintiffs are not the co-parceners and the suit land was not an ancestral property. It was pleaded that defendant No.2 was the absolute owner of the property in question and he had sold only 1/3rd share
of the land owned by him which was not more than his share in the total land. The land was mortgaged prior to the sale and thereafter it was sold. It was further pleaded that defendant No.1 has purchased the land for a sale consideration of Rs.49,500/- which was the actual market value of the land in question and defendant No.2 had every right to sell the land in question.
Defendant No.2, however, was proceeded exparte by the trial court.
The trial court after appreciating the evidence led by the parties under issues No.1 and 2 held that the plaintiffs and their father constituted a Joint Hindu Family and the plaintiffs were coparceners therein. However, under issue No.4, the trial court came to the conclusion that Om Parkash had created a charge of mortgage to the tune of Rs.8,000/- to meet the household expenses and he had a large family consisting of two sons, three daughters and a wife and the same was an act of prudence and held the impugned sale to be for consideration and legal necessity. Accordingly, the suit filed by the plaintiffs was dismissed vide judgment and decree dated 2.5.2000. On appeal, the lower appellate court reversed the findings returned by the trial court under issues No.1 and 2 holding that in the absence of any documentary proof it cannot be held that the plaintiffs and defendant No.2 are members of HUF and the suit land was ancestral in the hands of defendant No.2. However, the findings recorded by the trial court under issue No.4 were affirmed and dismissed the appeal vide judgment and decree dated 22.11.2000.
Learned counsel for the appellants could not pin point any error in the concurrent findings of fact recorded by the courts below that sale by defendant No.2 was for consideration and legal necessity which may call for interference by this Court in the regular second appeal. In the circumstances, once it is held that the sale by defendant No.2 was for consideration and legal necessity, the suit of the plaintiffs-appellants had been rightly dismissed by both the courts below. No question of law, much less a substantial question of law arises in this appeal.
In view of the above, finding no merit in this appeal, the same is hereby dismissed.
C.M. No. 8213-C of 2006
This is an application under Section 5 of the Limitation Act for condonation of 5 years and 180 days' delay in filing the appeal.
As the appeal has been dismissed on merits, no separate order is being passed on the application for condonation of delay.
September 12, 2006 (AJAY KUMAR MITTAL)
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