CIVIL APPEAL 222 of 2018 on 9 December 1997

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

OMP No.222 of 2018 inCivil Suit No.27 of 2018Reserved on : 26.12.2018Date of Decision : 8[th] January,2019

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Master Abeer Singh …….. Applicant/Plaintif

Versus

Smt. Savita Sharma & others ….Non-applicants/Defendants

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.Whether approved for reporting? [1] Yes.

For the Plaintiff:

Mr. Ajay Kumar, Senior Advocatewith Mr. Dheeraj K. Vashishat,Advocate.

For the Defendants: Mr. Sudhir Thakur, Advocate, for defendants No.1 to 5 and 9 to 11.

Mr. Vipin Pandit, Advocate, fordefendants No.6 and 7.

Mr. Mukesh Thakur, Advocate, forrespondent No.8.

Mr. S.C.Sharma & Mr. Dinesh Thakur,Additional Advocate Generals, forthe respondent-State.

__________________________________________________________

Sandeep Sharma, Judge (oral):

By way of instant application filed under Order 7Rule 11 read with Section 151 of the Code of CivilProcedure, prayer has been made on behalf of applicants- defendants No.1 to 5 and 9 to 11( hereinafter referred 1Whether the reporters of the local papers may be allowed to see the judgment?

to as the defendants”),praying therein for rejection ofplaint having been filed by the non-applicant(hereinafterreferred to as the “plaintiff”), Master Abeer Singh,minor son of defendant No.7, who has filed the civil suit fordeclaration through his next friend/natural guardian Smt.Deepali Thakur(mother).

2. Defendants have averred in the application thatsince plaintif was not born at the time of death of ShriKhayali Ram, great grandfather and Smt. Damyanti greatgrandmother of the plaintif, he has no right, whatsoever toclaim rights in the property of above named persons, whichhas been otherwise ordered to be distributed between allthe applicants-defendants No.1 to 5 including defendantsNo.6 to 8 in terms of compromise arrived inter se partiesbefore the Lok Adalat. Defendants have further averred inthe application that Sh. Khayali Ram, great grandfather andSmt. Damyanti great grandmother of the plaintif had diedon 9.12.1997 & 20.4.2007 respectively, and at that timeplaintif was not born and as such, he is not entitled toclaim any share and right in the property of above namedpersons, especially when he was not born on the date ofopening of Succession of above named persons.

Defendants have further averred that at present plaintif isliving with defendants No.6 and 7, who have alreadyreceived amount in terms of compromise and decreepassed by Lok Adalat and same is being used for thebenefit of the plaintif. At the time of birth of the plaintif,which took place on 25.3.2010, Succession of Smt.Damyanti Thakur and Sh. Khayali Ram was over and assuch, plaintif can claim only to the extent of share of hisfather i.e. defendant No.7 and not over and above of hisshare. Defendants have further averred that parties to thesuit are litigating for the last more than 10 years andsettlement has arrived at between the parties, pursuant towhereof partition proceedings are in process, in accordancewith law and as such, present suit which has been filedsolely with a view to defeat the award passed by the LokAdalat, deserves to be dismissed.

3. As per Section 41-B of Specific Relief Act, noinjunction can be granted to restrain any person frominstituting or prosecuting any proceedings in any Court notsubordinate to that from which the injunction is sought.Apart from above, defendants have averred that plea takenby the plaintif is not tenable in view of the amended

Hindu Succession Act,2005 whereby as per Section 6,daughters are also treated as coparcener in thecoparcenary property, which is not partitioned as per law.Lastly, defendants have averred that plaintif has notdisclosed any cause of action against the presentdefendants and as such, suit without cause of actiondeserves to be dismissed. Moreover, suit is against theaward of Lok Adalat, which cannot be laid challenge in anycourt of law and as such, same deserves to be rejectedoutrightly. Defendants have averred in the application thatplaintif for the purpose of acquiring jurisdiction of thisCourt, has assessed the value of the suit at Rs.50 lacs, butthere is no specific averment with regard to basis forcalculating and maintaining the suit before this Court.

4. Plaintif by way of reply has opposed the prayermade by the defendants in the aforesaid application andhas categorically stated that averments made in para 4 to 6of the plaint are very clear, comprehensible and explicit,which may be read as part and parcel of the reply. As perplaintif, he was not a party to the earlier suit and thereforeany compromise made in that suit to his detriment is notbinding upon him. He has further stated that the suit property i.e. subject matter of the case is coming in thefamily from Sh. Ram Krishan son of Shri Bairagi Ram, whowas great great grandfather of the plaintif and as such,character, nature and attribute of the suit property is thatof Joint Hindu Family Ancestral Property of the plaintif anddefendants No. 6 to 8. As per plaintif, half share in theancestral property of Shri Khayali Ram (presentlymeasuring 82 bighas) was owned by Sh. Baldev SinghThakur and the other half by Sh. Khayali Ram. After thedeath of Sh. Baldev Singh Thakur, he was replaced by hisson under the rule of survivorship and the Joint HinduFamily Coparcenary consisted of Sh. Khayali Ram and hisgrandson Shri Sumit Thakur (defendant No.7), each havinghalf share in the ancestral property measuring 82 bighas.

5. Plaintif has further averred in the reply that onthe death of Sh. Khayali Ram i.e. on 9.12.1997, his halfshare in the suit property was devolved upon his legal heirsi.e. his wife, five daughters and on the wife, son anddaughter of Sh. Baldev Singh i.e. predeceased son of Sh.Khayali Ram in equal shares, whereas defendant No.7continued to be owner of ½ share in the ancestral property,which he had acquired by birth and as such, plaintif on his

birth acquired 1/4th share in the same by operation of lawagain under the rule of survivorship. Therefore, share of theplaintif in the suit property belonging to the HinduUndivided Family ( for short “HUF”) of Sh. Khyali Ram,measuring 82 bighas is 1/4th undivided share, which heinherited by birth being member of the “HUF” coparcenary.Plaintif has further averred in the reply that entriesshowing Sh. Khayali Ram, as sole owner of the land till hisdeath are factually wrong, illegal, null and void and notbinding on the plaintif. He has claimed that Sh. KhayaliRam was holding the property not as a sole owner, but as aKarta of the Joint Hindu Family Coparcenary as such,mutation on the death of Sh. Khayali Ram was wrongly andillegally attested in favour of his legal heirs, whereas in fact½ share belonged to defendant No.7 by birth and rest ½share of Sh. Khayali Ram should have been attested infavour of his legal heirs. Plaintif further averred that thenature and character of the property measuring 82 bighasstanding in the name of Sh. Khayali Ram and Smt.Damyanti Thakur was that of “HUF” ancestral property andnot personal property of Sh. Khayali Ram. Plaintif hasfurther averred that Interpretation being given by the plaintif to Section 6 of the Hindu Succession Act, 1956, istotally incorrect, erroneous, fallacious and illegal. Sh.Khayali Ram died in December, 1997 and under oldunamended Section 6 read with section 8 of the HinduSuccession Act, 1956, the interest held by Sh. Khayali Ramdevolved upon his legal heirs under the doctrine of fictionalpartition. Defendants No.1 to 5 were not members of thecoparcenary when Sh. Khayali Ram died and they cannotclaim to be coparceners with their nephew Sh. SumitThakur, who continued to be Karta of his coparcenary withhis son Sh. Abeer Singh(plaintif). Plaintif has furtheraverred that the averments made in the plaint and thesupporting documents filed therewith, clearly disclose astrong and prima-facie cause of action in favour of theplaintif and as such, application filed on behalf of thedefendants under Order 7 Rule 14 CPC, praying thereinrejection of plaint deserves to be rejected.

6. I have heard learned counsel representing theparties and gone through the record carefully.

7. Before adverting to the factual matrix of thecase, it would be profitable to reproduce provisionscontained in Order VII Rule 11 CPC hereinbelow:-

11. Rejection of plaint— The plaint shall be rejected inthe following cases:—

(a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and theplaintif, on being required by the Court to correct thevaluation within a time to be fixed by the court,fails to doso;

(c) where the relief claimed is properly valued but theplaint is written upon paper insufficiently stamped, andthe plaintif,on being required by the Court to supply therequisite stamp-paper within a time to be fixed by theCourt, fails to do so; (d) where the suit appears from the statement in theplaint to be barred by any law:

(e) Where it is not filed in duplicate;

(f) where the plaintif fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for thecorrection of the valuation or supplying of the requisitestamp-paper shall not be extended unless the Court, forreasons to be recorded is satisfied that the plaintif wasprevented by any cause of an exceptional nature forcorrecting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by theCourt and that refusal to extend such time would causegrave injustice to the plaintif.

8. Careful perusal of aforesaid provisions of law,clearly suggests that plaint can be rejected when it doesnot disclose a cause of action, “where relief claimed isundervalued and the plaintif, on being required by theCourt to correct the valuation within a time to be fixed by the Court, fails to do so, where the relief claimed is properlyvalued and plaint is returned upon paper insufficientlystamped and the plaintif, on being required by the Court tosupply the requisite stamp-paper within a time to be fixedby the Court, fails to do so. Where the suit appears from thestatement in the plaint to be barred by any law, where it isnot filed in duplicate, where the plaintif fails to comply withthe provision of Rule 9.9.Expression ‘cause of action’ has been veryaccurately decided by the Hon’ble Apex Court in case titledas The Church of Christ Charitable Trust & EducationCharitable Society , represented by its Chairman vs.M/s Ponniamman Educational Trust represented byits Chairperson/Managing Trustee 2012(6)JT 149 :2012AIR SCW,4136 wherein Hon’ble Apex Court has laid downthat the“cause of action is a bundle of facts which takenwith the law applicable to them gives the plaintif the rightto relief against the defendant. Every fact which isnecessary for the plaintif to prove to enable him to get adecree should be set out in clear terms. It must includesome act done by the defendant since in the absence ofsuch act no cause of action can possibly accrue. Though, there are number of judgments passed by the Hon’ble ApexCourt laying therein parameters/ factors to be borne inmind by courts while considering an application filed underOrder VII Rule 11 CPC, but at this stage, this Court deems itfit to take note of latest judgment rendered by Hon’bleApex Court in case titled Kuldeep Singh Pathania versus Bikram Singh Jaryal, 2017(5) Supreme Court Cases 345.Relevant para No.11 of the judgment is reproduced asunder:

“11. In Mayar (H.K) LTD. v. Vessel M.V. FortuneExpress (2006) 3 SCC 100, this Court has dealt witha similar issue. To the extent relevant, para 12 readsas follows:(SCC P.115).

12. From the aforesaid, it is apparent that theplaint cannot be rejected on the basis of theallegations made by the defendant in his writtenstatement or in an application for rejection of theplaint. The Court has to read the entire plaint asa whole to find out whether it discloses a cause ofaction and if it does, then the plaint cannot berejected by the court exercising the power underOrder 7 Rule 11 of the Code. Essentially, whetherthe plaint discloses a cause of action, is aquestion of fact which has to be gathered on thebasis of the averments made in the plaint in itsentirety taking those averments to be correct. Acause of action is bundle of facts which arerequired to be proved for obtaining relief and forthe said purpose, the material facts are required to be stated but not the evidence except incertain cases where the pleadings relied on are inregard to misrepresentation, fraud, willful default,undue influence or of the same nature. So long asa plaint discloses some cause of action whichrequires determination by the Court. The merefact that in the opinion of the Judge the plaintifmay not succeed cannot be a ground for rejectionof the plaint.”

(See:-AIR 2012 Supreme Court cases

3023 also.

10. It is apparent from the aforesaid exposition oflaw that plaint cannot be rejected on the basis of theallegations made by the defendant in his written statementor in an application for rejection of plaint, rather court whileconsidering the application filed under Order 7 Rule 14 CPCis required to read entire plaint as a whole to arrive at aconclusion whether it discloses a cause of action and if itdoes, then the plaint cannot be rejected by the Courtexercising power under Order 7 Rule 11 of the Code.Similarly, whether the plaint discloses a cause of action, is aquestion of fact, which needs to be gathered on the basis ofthe averments made in the plaint in its entirety takingthose averments to be correct. Hon’ble Apex Court in thejudgment referred supra has categorically laid down that acause of action is a bundle of facts, which are required to be proved for obtaining relief and for the said purpose, thematerial facts are required to be stated but not theevidence except in certain cases where the pleadingsrelied on are in regard to misrepresentation, fraud, willfuldefault, undue influence or of the same nature. In caseplaint discloses some cause of action, which certainlyrequires determination by the Court, the mere fact that inthe opinion of the Judge the plaintif may not succeedcannot be a ground for rejection of plaint.

11. Now this Court shall proceed to examine andconsider the prayer made in the application in the light ofthe provisions contained under Order 7 Rule 11 CPC as wellas law laid down by the Hon’ble Apex Court (supra).Carefulperusal of plaint having been filed by the non-application/plaintif, who is minor son of defendant No.7, clearlysuggests that he has filed the suit through his next friendi.e mother, praying therein following reliefs:- “(a) that the suit property is a Joint Hindu familyancestral property and he has got ¼[th] share inthe same;ancestral property and he has got ¼[th] share inthe same;

(b) declaration to the efect that the compromisedecree dated 11.3.2017 passed by Lok Adalatin Civil Suit No.107/1 of 2010 and counterclaim No.156/ 2007 is illegal, null and void anddecree dated 11.3.2017 passed by Lok Adalatin Civil Suit No.107/1 of 2010 and counterclaim No.156/ 2007 is illegal, null and void and without jurisdiction and not binding upon theplaintif;

(c) a declaration to the efect that the existingrevenue entries qua the suit property arefactually and legally incorrect, null and voidand not binding upon the plaintif and furtherin the partition proceedings pending before theA.C.1st Grade Solan qua the suit property theplaintif is entitled to ¼[th] share;revenue entries qua the suit property arefactually and legally incorrect, null and voidand not binding upon the plaintif and furtherin the partition proceedings pending before theA.C.1st Grade Solan qua the suit property theplaintif is entitled to ¼[th] share; (d)and lastly a decree for permanent perpetualinjunction restraining the defendants fromchanging the nature of the suit property orfrom transferring or alienating the same;”injunction restraining the defendants fromchanging the nature of the suit property orfrom transferring or alienating the same;”

12. Close scrutiny of the averments contained in theplaint reveals that plaintif has claimed that late Sh.Khayali Ram, great grandfather of the plaintif, hisgrandfather Sh. Baldev Singh and his father Sh. SumitThakur(defendant No.7) constituted a Joint Hindu Family ofwhich originally Sh. Khayali Ram was the Karta and afterhis death Sh. Sumit Thakur (defendant No.7) became Kartaas Sh. Baldev Singh, who died on 4.7.1987, predeceasedhis father. It is not in dispute that Sh. Khayali Ram died on9[th] December, 1997. Plaintif has also alleged in the suitthat very character and nature of the suit property isancestral Joint Hindu Family coparcenary property, which had come into the hands of Sh. Khayali Ram i.e greatgrandfather of the plaintif from Sh. Ram Krishan, who videfamily settlement gave the same to his sons on 9.4.1953including a share of Sh. Khayali Ram and mutation dated9.4.1953 in this regard was attested in the revenue record.As per plaintif, Ram Krishan was the father of Sh. KhayaliRam and he on 9.4.1953 in the family settlement , settledthe ancestral property inherited by him from his father Sh.Bairagi Ram in favour of his six sons, namely Khayali Ram,Devi Singh, Chain Singh, Madho Ram, Chattar Singh andMaan Singh. As per plaintif, very origin of the suit propertyis ancestral because his great grand father Sh. Khayali Ramgot the property from his father Sh. Ram Krishan in thefamily settlement in April, 1953, whereafter Khayali Ram,his son Sh. Baldev Singh and his son Sh. Sumit Thakur(defendant No.7), constituted a Joint Hindu Family.13.In nutshell, the case as has been projected bythe plaintif in the plaint is that suit land was ancestralproperty in the hands of late Sh. Khayali Ram and the samewas owned by Sh. Khayali Ram and his son Sh. BaldevSingh Thakur to the extent of ½ share each i.e. 41.02 bighaapproximately both being coparcener. Though, the entire

land was recorded in the name of late Sh. Khayali Ram, butthe same was owned to the extent of ½ share only by him.Late Sh. Khyali Ram and late Sh. Baldev Singh anddefendant No.7 constituted a coparcenary and as such,plaintif also acquired right by birth in the ancestralproperty as coparcener. As per plaintif, after the death oflate Sh. Baldev Singh Thakur, land measuring 41.02 bigha,out of the suit land i.e. land owned by Sh. Baldev Singh hasbeen inherited by defendant No.7 to the extent of 20.08bighas and after the death of late Sh. Khayali Ram,Succession with regard to land measuring 41.02 bighaopened and plaintif also acquired right in the same bybirth. 14.To the contrary, defendants No. 1 to 5 and 9 to11 in their written statement have denied the factum ofexistence of Joint Hindu Family. They have denied that lateSh. Khayali Ram was Karta of the Hindu Joint Family. Theyhave also denied that after the death of Sh. Khayali Ram,Sumit Thakur (defendant No.7), who is son of Sh. BaldevSingh i.e. predeceased son of Sh. Khayali Ram, becameKarta of the Joint Hindu Family by operation of law. In para-3of the written statement, defendants have asserted that suit property is not ancestral Joint Hindu Family property,but they have also not disclosed the source from whichproperty travelled to Khayali Ram. There is no assertion inthe written statement that Khayali Ram got this property byalleged gift from his father, but they have denied thatKhayali Ram got property from his father, whereas case ofthe plaintif is that in the family settlement done by Sh.Ram Krishan, suit property came to the hands of KhayaliRam, which assertion/submission of plaintif is supported bythe revenue record placed on record pertaining to the year1951-52 onwards. In 1951-52 Sh. Ram Krishan is shown tobe owner of the suit property and in 1953 he transferredthe property in the name of his sons including Khayali Rami.e. great grand father of the plaintif by way of gift.

15. Mr. Sudhir Thakur, learned counsel representingthe applicants/defendants, vehemently argued that bareperusal of the plaint having been filed by the plaintif,suggests that it does not discloses any cause of action. Hefurther contended that suit is against the award of LokAdalat and as such, same is not maintainable. But thisCourt having carefully perused the plaint in its entirety isnot in agreement with the aforesaid submissions having been made by learned counsel for the applicants/defendants because by way of present suit plaintif hassought declaration to the efect that suit property is JointHindu ancestral property and he has got ¼[th] share in thesame. No doubt by way of suit at hand, plaintif has alsosought declaration to the efect that compromise deeddated 11.3.2017, passed by Lok Adalat is wrong, illegal, nulland void and without jurisdiction and not binding upon theplaintif, but that cannot be a ground to conclude at thisstage that suit having been filed by the plaintif is notmaintainable and it deserves to be rejected at this stage.16.Careful perusal of plaint filed by the plaintif vis-a-vis written statement having been filed by thedefendants,certainly compels this Court to agree with thecontention of Mr. Ajay Kumar, learned Senior Advocaterepresenting the plaintif that plaintif has cause of action inhis favour to file suit at hand because factum with regard toplaintif being great grand son of Sh. Khayali Ram is not indispute, rather claim as put forth by the plaintif in theplaint is sought to be opposed by the applicants/defendantson the ground that since plaintif was not born at the timeof death of his great grandfather i.e. Sh. Khayali Ram and great grandmother Damyanti, who died on 9.12.21997 and20.4.2007 respectively, he has no right to claim any right inthe property in question, which question definitely needs tobe decided in the present suit.

17. As per Mr. Sudhir Thakur, learned counsel

representing the applicants-defendants, succession of Sh.Khayali Ram and Smt. Damyanti Thakur was already over atthe time of birth of plaintif and as such, plaintif at best canclaim his share from his father i.e. defendant No.7 and notfrom the share already succeeded by the applicants/defendants from their parents Sh. Khayali Ram and Smt.Damyanti Thakur, but this Court is of the view thataforesaid plea taken by the applicants/ defendants may notbe relevant/ crucial at this stage as far as decision on theapplication having been filed for rejection of plaint filed bythe plaintif is concerned because at this stage, court whileconsidering application under Order 7 Rule 11 CPC, is onlyrequired to see whether plaint discloses any cause ofaction, which being question of fact can only be answeredby Court after having carefully gone through the avermentsmade in the plaint in its entirety. Hon’ble Apex Court in thejudgment (supra) has categorically held that cause of action is bundle of facts, which are required to be provedfor obtaining relief and for the said purpose the materialfacts are required to be stated. In case Court after havingcarefully perused the averments contained in the plaintarrive at a conclusion that plaint discloses some cause ofaction, application under order 7 Rule 14 CPC, prayingtherein for rejection of plaint cannot be accepted.18.Revenue record placed on record by the plaintifclearly reveals that Sh. Ram Krishan by way of gift settledthe ancestral property inherited by him from his father Sh.Bairagi Ram in favour of his six sons Khayali Ram, DeviSingh, Chain Singh, Madho Ram, Chattar Singh and MaanSingh. Plaintif has specifically stated in the plaint that verycharacter and nature of the property is ancestral and Sh.Khayali Ram great grandfather of him got it from his fatherRam Krishan in family settlement in April, 1953. Though,factum with regard to property being ancestral has beentotally denied by the applicants/defendants, but in writtenstatement there is no specific averments qua the sourcefrom which Sh. Khayali Ram got the property in question.19.At this stage, Mr. Sudhir Thakur, learned counselrepresenting the defendants/applicants while inviting attention of this Court to the revenue record placed onrecord by the plaintif, contended that bare perusal of thesame suggest that suit property came to the hands of Sh.Khayali Ram by way of gift and as such, property ceasedto be ancestral. He further contended that since propertycame to the hands of Sh. Khayali Ram by way of gift madein his favour by Sh. Ram Krishan, very character and originof the property ceased to be ancestral and as such, plaintifhas no right to claim share/right in the suit property and thesuit having been filed by him deserves to be rejected outrightly.

20. In support of his aforesaid contention, he placedreliance upon upon the judgment rendered by this Court inPohlo Ram and another versus Manohar Lal andothers, 1992(1) Sim. L.C.41, wherein it has been held thatin case property is acquired by gift, it ceases to beancestral except when the gift is made of ancestralproperty by the donor. The relevant para No.6 and 7 of thejudgment are reproduced hereinbelow:- “6.After Sukhman had contracted secondmarriage, this deed of gift, on the basis of which thedonor made gift of ½ of the property entered in oneof the Khewats by retaining the remaining with him

cannot be said to be tantamounting to accelerationof succession. In order to prove ancestral nature ofthe land, onus lay heavily upon the plaintifs. TheSupreme Court in Mara and other v. Mst. Nikkoalias Punjab Kaur & another,AIR 1964 SC 1821,in para 7 of its report has held that where lands areso mixed up that the ancestral and non-ancestralproperties could not be separated, they must beregarded as non-ancestral unless it is shown, whichare ancestral and which are not and the land ceasesto be ancestral if it comes to the hand of an ownerotherwise than by descent. The land in the presentcase, which was non-ancestral, did not come in thehands of Durga by descent but came to him on thebasis of deed of gift. On a review of variousjudgments on the point and on the question as towhether gift of the part of the ancestral propertymade by a donor in favour of his only heir wouldcontinue to retain the character of ancestralproperty, learned Single Judge of Punjab andHaryana High Court in Kapur Chand Major andanother vs. Des Raj, 1974 Punjab Law Reporter522, held that ancestral property as regards sons,means property inherited from a direct maleancestor and as regards collaterals, means theproperty inherited from a common ancestor. Theproperty ceases to be ancestral if it comes into thehands of an owner otherwise than by descent or byreason merely of his connection with the commonancestor. In case the property is acquired by gift, itceases to be ancestral except when the gift is madeof ancestral property by the donor to the person/

persons who would succeed to it by inheritance onhis death and the gift amounts to acceleration ofsuccession, that is, the donor completely efaceshimself and makes a gift of his whole property to theentire body of heirs, who would be entitled to inheritit in the event of his death.

7. In the instant case, it cannot be said that therewas any acceleration of succession when Sukhmanmade a gift of a portion of his property withoutcompletely efacing himself. The findings recordedby the courts below holding part of the suit propertyas non-ancestral do not require any interference inview of the above proposition of law.”

21. It is quite apparent from the aforesaid law laid down by this Court that ancestral property as regards sons,means property inherited from a direct male ancestor andas regards collaterals, means the property inherited from acommon ancestor. The property ceases to be ancestral if itcomes into the hands of the owner otherwise than bydescent or by reason merely of his connection with thecommon ancestor. In the aforesaid judgment this Court hasheld that in case property is acquired by gift, it ceases to beancestral except when the gift is made of ancestralproperty by the donor to the person/persons who wouldsucceed it by inheritance on his death and the gift amounts to acceleration of succession, that is, the donor completelyefaces himself and makes a gift of his whole property tothe entire body of heirs, who would be entitled to inherit itin the event of his death.

22. In the case at hand, careful perusal of the

revenue record reveals that by way of gift deed, Sh. RamKrishan settled the ancestral property inherited by hisfather Sh. Bairagi Ram in favour of his sons namely KhayaliRam,Devi Singh, Chain Singh, Madho Ram, Chattar Singhand Maan Singh, meaning thereby he completely efacedhimself and made gift of his whole property to the entirebody of his heirs, who would have been otherwise entitledto inherit it in the event of his death. It is not in dispute thatin 1953 daughters had no right to inherit the ancestralproperty and otherwise also there is nothing on record tosuggest that Sh. Bairagi Ram had other legal heirs save andexcept six sons, named hereinabvoe, and in whose favourhe made gift of his whole property. 23.Pleadings adduced on record by both the partiesreveal that prior to filing of the instant suit by the plaintif,applicants/defendants No. 2 to 4 had filed Civil SuitNo.107/1 of 10/07 (old No.92/1 of 2007) against non- applicants/defendants No. 1 to 6 and 8 in the Court of CivilJudge (Senior Division) Solan, titled as Saroj verma andothers versus Smt. Sudesh Thakur and others, forpermanent prohibitory injunction and declaration. In theaforesaid suit defendants No. 6 to 8 in the present suit( whowere defendants No.1 to 3 in that suit) filed writtenstatement-cum- counter claim, which was registered ascounter claim No.156/1 of 2007, claiming therein that suitland is ancestral property of counter claimants. Aforesaiddefendants further claimed that Counter claimant No.2constituted coparcenary with his grandfather Sh. KhayaliRam. In para-4 of the plaint of the instant suit having beenfiled by the plaintif, he has reproduced para-2 of thewritten statement- cum- counter claim of defendants No.1to 3 of that suit( defendants No.6 to 8 in this case) which isbeing reproduced hereinabove:- “The suit land was ancestral property in the handsof late Sh. Khayali Ram and the same was owned bySh. Khayali Ram and his son of Sh. Baldev SinghThakur to the extent of ½ share each i.e. 41.02 bighaapproximately both being coparceners. Though, theentire land was recorded in the name of late Sh.Khayali Ram, but the same was owned to the extentof ½ share only by him. Late Sh. Khayali Ram andlate Sh. Baldev Singh and counter claimant No.2

constituted a coparcenary and due to the same, thecounter claimant No.2 acquired birth right in theancestral property as coparcener. After the death oflate Sh. Baldev Singh Thakur, land measuring 41.02bigha, out of the suit land i.e. land owned by Sh.Baldev Singh has been inherited by claimant No.2 tothe extent of 20.08 bighas and 0.07 bigha each bycounter claimant No.1 and 3.After the death of lateSh. Khayali Ram, succession with regard to landmeasuring 41.02 bigha opened”

24. Careful perusal of the contents of aforesaid paraof written statement filed by defendants No.6 to 8 in thecivil suit having been filed by applicants/defendants No. 6to 8 suggests that defendants No. 6 to 8 despite havingtaken specific stand as reproduced hereinabove in detail,entered into the compromise with defendants No. 1 to5/applicants in the aforesaid civil suit on 11.3.2017.Plaintif, who had born by that time has specifically statedin the plaint, which is sought to be rejected by applicants/defendants that defendants No.6 to 8 entered into theillegal and wrong compromise with the applicant/defendantNos. 1 to 5 surrendering his rights. He has further statedthat said compromise jeopardized, sacrificed and wiped outhis right in the suit land. Compromise arrived inter separties is totally detrimental to his interest and therefore,

is not binding upon him. There appears to be considerableforce in the arguments of Mr. Ajay Kumar, learned Seniorcounsel representing the plaintif that defendants No.6 to 8in the present suit themselves raised the issue that suitproperty was Joint Hindu Coparcenary Property and evenfiled counter claim in the same on the basis of such pleaand it is not understood that why they abandoned the saidplea which is totally against the interest of the minor. ThisCourt is in agreement with Mr. Ajay Kumar learned Seniorcounsel that the nature, character and origin of the suitproperty is to be decided, as also the rights, if any, of theplaintif in the suit property in the suit having been filed byhim and as such, it cannot be said that there is no cause ofaction, if any, in favour of the plaintif.25.In the case at hand, defendants No.6 to 8despite having known that plaintif has acquired right in theproperty by birth, entered into compromise, binding efect,if any, of the same qua the plaintif is yet to be determinedin the present proceedings because undoubtedly plaintifwas not party to those proceedings. Though, Section 21(2)of the Legal Services Authority Act, 1987, provides thatevery award made by the Lok Adalat shall be final and binding on all the parties to dispute and no appeal shall lieto any court against the award, but this Court cannot loosethe sight of the fact that plaintif herein was not party tothe proceedings which led to passing of award by the LokAdalat. In para-9 of the plaint plaintif has specificallyaverred that Lok Adalat was not competent to take up thematter which was pending in the regular Court and it hadno jurisdiction to deal with the matter and order ofcompromise passed by it is also nonest and illegal andwithout jurisdiction. Plaintif has averred that Civil Courtand Lok Adalat had not even pecuniary jurisdiction to dealwith the subject matter of the earlier suit filed bydefendants No. 1 to 5. Bar of Section 21(2), as provided byLegal Services Authority, 1987, to my mind, would notapply to the plaintif as he was not party to the earlier suit,though, this question shall be decided in the main suit, butdefinitely plaint cannot be rejected solely on this ground.

26. Section 9 of the CPC, clearly provides thatCourts shall have jurisdiction to try all the suits of civilnature except those suits, entertainment whereof isexpressly or impliedly barred. In this regard, reliance isplaced upon the judgment rendered by Hon’ble Apex Court in Ramesh Govindram(deceased by LRs.) vs. SugraHumayun Mirza Wakf, AIR 2010 SC 2897, wherein it hasbeen held as under:- “5. The well settled rule in this regard is that theCivil Courts have the jurisdiction to try all suits ofcivil nature except those entertainment whereof isexpressively or impliedly barred. The jurisdictionof Civil Courts to try suits of civil nature is veryexpansive. Any statute which excludes suchjurisdiction is, therefore, an exception to thegeneral rule that all disputes shall be triable by acivil Court. Any such exception cannot be readilyinferred by the Courts. The Court would, lean infavour of the construction that would uphold theretention of jurisdiction of the Civil Courts andshift the onus of proof to the party that assertsthat civil Court’s jurisdiction is ousted.”

( See:- AIR 1995 page 2001, titled Most. Rev.P.M.A. Metropolitan versus Moran Mar Marthoma &another & AIR 1975 SC 1126 titled Smt. Ganga Baiversus Vijay Kumar).

27. It may be noticed that Mr. Sudhir Thakur,learned counsel representing the applicants/defendants insupport of his contentions, which have been otherwisetaken note hereinabove, also placed reliance upon thefollowing judgments rendered by Hon’ble Apex Court inBhanwar Singh versus Puran and others AIR 2008(2)SC 1490, Uttam versus Saubhag Singh2016 (1) Apex

Courts Judgments SC 619, Commissioner of Wealthtax Kanpur, etc., versus Chander Sen etc.,AIR 1986Supreme Court 1753, Shreya Vidyarthi versus AshokVidyarthi and others 2016(1) Apex Courts Judgments263 (S.C.), Mohinder Kaur versus Pargat Singh andothers, 2010 (3) Civil Court Cases 072 (P & H) andSher Singh and another versus Siri Kishan andothers,2010 (4) Civil Court Cases 459 (P & H),however, this Court having carefully perused the contentsof the same, is of the view that same are not applicable orrelevant as far as adjudication of the present application isconcerned, wherein admittedly this Court is only calledupon to determine whether cause of action, if any, exist infavour of the plaintif, which would entitle him to file civilsuit. Needless to say, cause of action is to be gathered onthe basis of the averments made in the plaint in its entiretytaking those averments to be correct. ( Kuldeep Singh casesupra). Accordingly, judgments referred hereinabove bylearned counsel for the applicants/defendants are not beingreferred at this stage.

28. Consequently, in view of the above, this Courthas no hesitation to conclude that non-applicant-plaintif has cause of action, if any, to file the suit and as such,same is required to be heard and decided on merits.29.Any observations made hereinabove shall not beconstrued to be a reflection on the merits of the case andshall remain confined to the disposal of this petition alone.Accordingly, the present petition is dismissedbeing devoid of any merit.

8[th] January, 2019(shankar)

(Sandeep Sharma), Judge