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Moman Vs. Radha Kishan - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal Nos. 1272 and 1609 of 1963
Judge
Reported inAIR1974P& H186
AppellantMoman
RespondentRadha Kishan
Cases ReferredLajja Ram v. Abdul Rahim Khan
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - he consequently, accepted the appeal and decreed the suit for possession of the land in dispute, but held that the plaintiff was entitled only to get possession of one-third share of the..........judge, sangrur, he reversed the finding of the trial judge regarding the necessity for the sale and held that the vendee had not been able to establish legal necessity for the same. he consequently, accepted the appeal and decreed the suit for possession of the land in dispute, but held that the plaintiff was entitled only to get possession of one-third share of the land, because dharam singh had left other heirs as well and the plaintiff was entitled only to that much share. aggrieved by this decision, the vendee has come here in second appeal and the plaintiff has filed a cross-appeal (no. 1609 of 1963) saying that the learned district judge was in error in decreeing the suit regarding only one-third share in the land. 6. the first question to be determined is whether the sale.....
Judgment:

1. This order will dispose of two cross-appeals Regular Second Appeals Nos. 1272 and 1609 of 1963.

2. On 15th February, 1957, Dharam Singh sold the land in dispute to Moman for Rs. 4,104/-. This sale led to a suit for declaration and possession filed in January 1962 by Radha Krishan, the minor son of the vendor. His allegations were that he was the son of the vendor, that the parties were governed by custom, that the land in dispute was ancestral and that the sale effected by his father was not for legal necessity.

3. The suit was resisted by the vendee, who controverted the allegations made by the plaintiff.

4. The trial Judge decided all the points in favour of the plaintiff, but held that the sale had been made for legal necessity and on that finding, he dismissed the suit.

5. When the matter came in appeal before the learned District Judge, Sangrur, he reversed the finding of the trial Judge regarding the necessity for the sale and held that the vendee had not been able to establish legal necessity for the same. He consequently, accepted the appeal and decreed the suit for possession of the land in dispute, but held that the plaintiff was entitled only to get possession of one-third share of the land, because Dharam Singh had left other heirs as well and the plaintiff was entitled only to that much share. Aggrieved by this decision, the vendee has come here in second appeal and the plaintiff has filed a cross-appeal (No. 1609 of 1963) saying that the learned District Judge was in error in decreeing the suit regarding only one-third share in the land.

6. The first question to be determined is whether the sale was for legal necessity or not.

7. In the sale-deed, Exhibit D-1, all that has been mentioned is that the money was required by the vendor for household expenses and for the construction of a house. It has come in evidence that the vendor already possessed a house, which is a kutcha one. The learned District Judge has come to the conclusion that the construction of a house is not a valid item of necessity when the vendor already possessed one. It is also proved on the record that the vendor owned agricultural land, measuring 455 Bighas, and he had no debts to pay. He, immediately before the sale in question, had sold land for Rs. 9,800/- by different sale-deeds. All those sales took place within a year or two of the sale in dispute. It is further established on the record that the vendor used to drink liquor and he died of over-drinking. The learned District Judge has found that the vendor was neither a prudent man nor of good character. There is nothing on the record to show that the vendee made any enquiry regarding the fact as to whether the vendor really needed money for the construction of a house. The vendee had relied on two rulings of this court for showing that the purchase of a house was an item of necessity under custom. But both these rulings are inapplicable. In the first one Labhu v. Sawan Singh, AIR 1926 Lah 252, the alienation had been made for paying off debts. Those debts pertained to the construction of a house. Under these circumstances, it was held that so far as the subsequent vendee was concerned, the item regarding the construction of a house had become an antecedent debt and, therefore, he was well protected. As regards the other ruling Lachi v. Surja, AIR 1926 Lah 409, the ancestral house of a person was sold in execution of a decree and there was likelihood of his being dispossessed therefrom. It was not easy to take on rent another house in the village and therefore, he sold the ancestral land for the purpose of purchasing another house. Under these circumstances, it was held that the purchase of a house was a valid item of necessity. Undoubtedly, these two rulings are distinguishable on facts.

8. There is a ruling reported as Lajja Ram v. Abdul Rahim Khan, (1928) 29 Pun LR 222 = (AIR 1928 Lah, 437), where it was held that a Hindu father was not entitled to sell joint ancestral property in order to get a better house for himself when he already possessed a house and, consequently, the money spent in the purchase of another house was not for necessity. There it was said that the old house of the vendor was only a thatched one, but the learned Judge observed that there was nothing whatever to show that the said house was insufficient for his needs.

9. In the instant case also, it is true that the alienor possessed a kutcha house, but it has not been proved on the record that the said house was insufficient for his needs and it was for that purpose that he wanted to construct a new one. In these circumstances, it has to be held that the learned District Judge was right in holding that the alienation was not proved to be for necessity.

10. The result is that the appeal filed by the vendee fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs in this Court as well.

11. As regards the appeal filed by the plaintiff, there is no merit in the same. There is no dispute that the alienor left a number of heirs and the plaintiff was only entitled to one-third share in his property. This being a suit for possession, the plaintiff cannot be granted a decree for more than his own share. The learned District Judge was, therefore, right in granting him a decree for possession of one-third share in the land in question. This appeal also fails and is dismissed, but with no order as to costs.

12. Appeal dismissed


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