Jagat Singh and Another vs Tarsem Singh and Others

Gokal Chand Mital, J.—This order will dispose of Regular Second Appeal No. 495/1975 and 2534 of 1981, as they are between the same parties who are near relations.

Small pedigreetable would useful to understand the Case:

On 5th March, 1963, Waryam Singh gifted Khasra Nos. 433, 434, measuring 11 marlas and 17 marlas respectively, in favour of Tarsem Singh and Biker Singh. By the same document he also gifted 11 marlas out of Khasra number No. 441. The total area of Khasra No. 441 was 3 kanals 12 marlas. On 1st June, 1971, Jagat Singh and Kabul Singh filed suit to challenge the gift on the plea that the gifted property was ancestral, and, therefore, Waryam Singh could not make any gift and claimed a decree for joint possession. Both the Courts below have found that Waryam Singh had the authority to gift and dismissed the suit Regular Second Appeal No. 495 of 1975 has been filed by the Plaintiffs.

While the above dispute was still pending in the trial Court; Jagat Singh and Kabal Singh filed another suit for mandatory injunction against Santa Singh, Tarsem Singh and some other persons, who were co-sharers in Khasra Nos. 441 and 435 seeking demolition of 2 pillars-shown ''G'' and ''H'' with a wooden beam on them, 2 Khurlis ''J'' and ''K'' and wall ''MN'' shown in plan Exhibit P1 attached to the plaint, on the plea that the portion shown red in the plan Exhibit P1 by A, B, C, D, E and F was a common Rasta of the parties, which was blocked by them by raising the disputed construction and should be got demolished. The suit was contested. The trial Court decreed the suit for mandatory injunction for removal of the two pillars and the beam and Khurlis but declined to decree the suit for removal of the wall. Both the sides appealed and the lower Appellate Court allowed Plaintiffs'' appeal and decreed the suit for the removal of the wall as well and dismissed the Defendants'' appeal. Regular Second Appeal No. 2534 of 1981 has been filed by Tarsem Singh

The arguments raised on behalf of the Plaintiffs in R.S.A. No. 495 of 1975 is that the parties are members of the Hindu undivided family on which Waryam Singh was the Karta and since property in dispute belonged to the Joint Hindu Family, Karta could not make any gift. No plea was raised in the plaint that the property in dispute belonged to Joint Hindu Family or that they constituted coparcenary. It was merely stated that the property was ancestral. The Court below has rightly held that the parties are Sikh Jats and being agriculturist are governed by custom in matters of alienation. Assuming the property to be ancestral the right of the reversioners to challenge the alienation has been taken away by the Punjab Act No. 12 of 1972. A Division Bench of this Court has held in Charan Singh v. Gehl Singh (1974) 76 P.L.R. 125, that the amendment is retrospective and the right of the reversioners to challenge the alienation has been taken away, and therefore, no relief can be granted in this appeal.

Adverting to the other second appeal, I have seen plans Exhibit P1 and P3 along with the report of the Local Commissioner Exhibit P. 2. I find that the houses of Jagat Singh and Kabal Singh are in Khasra No. 441 and their right of passage is through Khasra No. 435 shown red in the plan They can go out of their houses/ Baras only from the red portion shown in the plans, which is pan of Khasra No. 435. Part of Khasra No. 441 is also shown common so far as the dependants of Waryam Singh are concerned. As regards the other Defendants namely Harbars Singh etc., their approach is only through part of Khasra No. 435. From the evidence as found by the Courts below, it is clear that the right of passage of the Plaintiffs has been blocked by building wall, setting up Khurlis and by construction of pillars and beams. They have rightly been ordered to be demolished. Accordingly, there is no merit in this appeal either.

For the reasons recorded above, both these appeals are devoid of merit and are dismissed leaving the parties to bear their own costs.