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PETITIONER: SHER SINGH & ORS.

       Vs.

RESPONDENT: GAMDOOR SINGH

DATE OF JUDGMENT:       13/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal, by special leave, arises from the judgment and order  of the  Punjab and  Haryana High  Court, made  on December 8, 1995 in RSA No. 2617/95.      The appellants  had filed suit No.8 of 9.2.1978 against Arjan Singh,  son of  Badan Singh in the Court of Sub Judge, III class,  Patiala for  declaration that  the plaintiffs in that suit  were owners  and were  in possession from 1968 to the extent  of 5/6  share,  along  with  the  defendant,  of agricultural land  admeasuring 74 kanals 12 marlas comprised in Khewat  Khata Nos.5/5  Khasra No.68/1(7-10) etc. situated in village  Ghagga, Tehsil  Samana, District  Patiala. Arjan Singh had  admitted in  his pleadings  that the property was ancestral Hindu  Joint Family  and suffered  a  decree.  The present  suit  came  to  be  filed  by  Gamdoor  Singh,  the respondent in  this case  for a  declaration that the decree therein was collusive decree and did not bind him. The trial Court granted the decree. On the appeal it was confirmed and Second Appeal  was dismissed.  Thus this  appeal by  Special Leave.      It is  contended by  Shri Ujjagar Singh, learned senior counsel for  the  appellants,  that  unless  the  respondent establishes  that   exists  Joint   Hindu  Family  of  three succeeding generations,  there is  no presumption  that  the property is  the co-parcenary  property. Therefore, the view of the  Courts below that it is a co-parcenary property  and that the  respondent by virtue of his birth in the family is entitled to  1/6 share  in the  property  and  the  previous decree to  which he was not member does not bind him, is not correct in  law. We do not find any force in the contention. It was  their own  case in  the previous  suit  that  it  is ancestral property  and that  Arjan Singh  and his  sons are members of  the join  family. Once  the existence  of  joint family was  not in dispute, necessarily the property held by the family  assumed the character of a co-parcenary property and every member of the family would be entitled by birth to share in the co-parcenary property unless any one of the co- parceners pleads,  by separate  pleadings, and  proves  that

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some of  the properties  or all the properties are his self- acquired properties  and could  not be  blended in  the  co- parcenary property.      It is  settled law that even the self-acquired property can  also   be  blended  into  the  joint  family  hotchpoch enveloping the  character of  co-parcenary property.  It  is also not  pleaded in  the written  statement that  it is not joint family  property. The  very first  issue by  the trial Court which  was not   objected  to was whether the property was ancestral  property of the parties? The second issue was whether the plaintiff is entitled to joint possession of the suit land  and the  third issue  was  whether  the  previous decree   bound the  respondent? Under  those  circumstances, both the  parties proceeded on the premise that it was a co- parcenary property  belonging to the Joint Hindu Family. The finding recorded  by all  the courts  is that  the  property belonged to  Joint Hindu Family. Therefore, the finding that the respondent  is entitled to 1/6 of share by virtue of his birth is  well justified  and the  finding that the previous decree does not bind him as being tainted with fraud, is not vitiated by any error of law.      It is  also an admitted fact that he was not a party to the earlier  suit and  the decree  was granted  without  his consent. Under those circumstances, the finding that it is a collusive decree  is a finding of fact based on appreciation of evidence.  Under those  circumstances, we do not find any substantial question of law warranting interference.      The appeal is accordingly dismissed. No costs.