1.CM No.10581-C of 2010
Allowed as prayed for.
CM No.10582-C of 2010
2. For reasons mentioned in the application which is accompanied by affidavit, delay of 56 days in filing the appeal is condoned.
CM No.10583-C of 2010
3. For reasons mentioned in the application which is accompanied by affidavit, delay of 49 days in re-filing the appeal is condoned.
Main Appeal.
4. Beena Devi-plaintiff has filed the instant second appeal, having failed in both the Courts below.
5. Plaintiff-appellant filed suit against respondents/defendants challenging sale of 8 kanals 3 marlas land, in suit made by plaintiff's father Bail Chand-defendant-respondent No.1 in favour of Satish Kumar-defendant- respondent No.2 vide sale deed dated 28.06.2002 alleging that the suit property is ancestral coparcenary property of plaintiff and defendant No.1 and the impugned sale has been effected without consideration and legal necessity.
6. Defendant No.1 broadly admitted the claim of the plaintiff.
7. Defendant No.2 contested the suit and denied the plaint allegations. It was alleged that plaintiff being daughter of defendant No.1 could not be coparcener with defendant No.1. It was also pleaded that defendant No.1 was in need of money to repay the debts and he sold a part of his property to defendant No.2 for sale consideration of Rs. 2,29,500/- which was actually paid. Out of it, defendant No.1 paid Rs. 1,00,000/- to his creditor Girish Kumar on 25.06.2002. Defendant No.2 is now owner in possession of the suit land. Various other pleas were also raised.
8. Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 26.05.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Faridabad vide judgment and decree dated 10.11.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal.
9. I have heard learned counsel for the appellant and perused the case file.
10. Learned counsel for the appellant vehemently contended that the impugned sale deed was executed by defendant No.1 in favour of defendant No.2 without consideration and legal necessity and, therefore, the sale is null and void. The contention is not acceptable at the instance of the plaintiff appellant, who has no locus standi to challenge the impugned sale made by defendant No.1 in favour of defendant No.2 because defendant No.1 is still alive. Plaintiff being daughter of defendant No.1 cannot be said to be coparcener with defendant No.1. Amendment made in Hindu Succession Act making daughters also as coparceners, is not applicable to the instant case. The impugned sale had been effected long before the said amendment came into force with effect from 09.09.2005. Consequently, the plaintiff had no right, title or interest in the suit land, when the impugned sale was made and, therefore, the plaintiff had no locus standi to file the suit and to challenge the sale made by defendant No.1 in favour of defendant No.2.
11. In addition to the aforesaid, the plaintiff has filed simple suit for declaration without seeking relief of possession of the suit land. Suit for declaration alone without seeking relief of possession is not maintainable in view of mandatory provision of proviso to Section 34 of the Specific Relief Act, 1963. For this added reason as well, the plaintiff-appellant cannot succeed. There is concurrent finding by both the Courts below against the plaintiffappellant. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely frivolous and vexatious and is bereft of any merit and is accordingly dismissed in imine.