Sunita and Others vs Ishwar Kala and Another

Hemant Gupta, J.—The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the suit in respect of the land measuring 48 kanals 18 marlas situated in village Ugalan has not been decreed.

The plaintiff is daughter of Sohan Singh, who has filed a suit for permanent injunction restraining defendant No. 1 from adopting defendant No. 5 and alienating her share in the land situated in village Bar Chhappar and in village. Ugalan, claiming the property to be ancestral property. It is pointed out that Sohan Singh son of Matu Ram has married defendant No. 1 and out of the wedlock, the plaintiff and Krishan were born. Krishan has died leaving behind his widow defendant No. 2, whereas defendant Nos. 3 and 4 are son and daughter of Krishan. It has been held that Sohan Singh has received suit land from his father and, therefore, the same is ancestral property of the parties and, thus, defendant No. 1 cannot alienate the same.

The defendants, the wife and daughters of Krishan filed a counter claim claiming that plaintiff be declared owner of 1/9th share in respect of 1/3rd share in the suit land in terms of the provisions of the Hindu Succession Act, 1956. The trial Court dismissed the suit but decreed the counter claim granting 1/9th share to the plaintiff; 5/9th share to defendant No. 1 and 3/9th share to defendant Nos. 2 to 4. However, in appeal, the judgment and decree was maintained except to the extent of modifying the same in respect of land measuring 48 kanals 18 marlas, which was found to be self acquired property of Sohan Singh and, thus, it was held that the plaintiff would be entitled to 1/3rd share in the suit land being the daughter of Sohan Singh.

Learned Counsel for the appellant has vehemently argued that it is the categorical case of the plaintiff in the plaint itself that the entire land is ancestral property. The said averment is in respect of the land situated in village Ugalan as well. Since the plaintiff has not sought to withdraw the admission made in the plaint itself, the judgment and decree in respect of the suit land is not sustainable. It is argued that in fact Matu father of Sohan Singh was the occupancy tenant and after the death of Matu, Sohan Singh inherited the tenancy rights and, therefore, it will be deemed to be ancestral land.

After hearing the learned Counsel for the appellant, I do not find any merit in the argument raised by the learned Counsel for the appellants. The fact remains, which is not controverted, that the proprietary rights were conferred on Sohan Singh on account of his being occupancy tenant in terms of the Punjab Occupancy Tenants (Vesting of Proprietary rights) Act, 1952. Therefore, once the proprietary rights have been conferred upon Sohan Singh, such property shall be his self acquired property.

It has been found by the learned first Appellate Court that the land measuring 48 kanals 18 marlas was obtained by Sohan Singh on account of his being an occupancy tenant. Reliance is placed upon Satpal Singh v. Harminder Kaur 1992 P.L.J. 142, to hold that such land is to be treated as the self acquired property of Sohan Singh.

The argument that the plaintiff have not sought to withdraw the admission is again not sustainable. It is well settled that admission can be proved to be wrong. For such proof, the plaintiff was not required to amend the plaint. Since the factum of Sohan Singh being an occupancy tenant and vesting of the occupancy rights is not dispute, the admission of the plaintiff is erroneous and against the law, as is apparent from the record, therefore, on the basis of alleged admission, the plaintiff cannot be denied her share in the property.

Consequently, the findings recorded by the Courts below that the property measuring 48 kanals 18 marlas is the self acquired property of Sohan Singh, cannot be said to be suffering from any patent illegality or irregularity, which may give raise to any substantial question of law in the present appeal.

Hence, the present appeal is dismissed.