( 2025:HHC:34581 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 23 of 2016. Reserved on: 7 th October, 2025. Decided on: 14 th October, 2025. Naresh Kumar .... Appellant. Versus Smt. Bimla Devi (deceased) through LRs. & Ors. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. N.K. Thakur, Senior Advocate with Mr. Karanveer Singh, Advocate. For the Respondents: Mr. J.P. Sharma, Advocate. Satyen Vaidya, Judge. The instant Regular Second Appeal has been filed against the judgment and decree dated 15.09.2015 passed by learned Additional District Judge-1, Una, H.P. in Civil Appeal No. 70 of 2014 whereby judgment and decree passed by the learned Civil Judge (Junior Division), Court No. II, Una, H.P. in Civil Suit No. 169 of 2006, has been set aside. 2. The appellant herein was plaintiff before the learned trial Court in Civil Suit No. 169 of 2006. The suit was 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:34581 ) filed by the plaintiff against his grandfather and father by impleading them as defendants No.1 and 2 respectively. 3. Plaintiff had sought declaration that the suit land was joint Hindu ancestral property of the parties and the plaintiff being a member of joint Hindu Family was having share therein. A decree of permanent prohibitory injunction was also sought to restrain the defendants from making any kind of alienation of the suit land. 4. Defendants claimed the suit land to be self- acquired property of defendant No.1 and in this manner the status of suit property being joint Hindu ancestral property was denied. It was alleged by the defendants that the suit was filed by the maternal grandfather of plaintiff to harass the defendants. It was also alleged that the maternal grandfather of plaintiff had earlier accused the defendants of criminal offence involving the death of mother of plaintiff, in which they were acquitted. 5. Learned trial Court had framed the following issues:- 1. Whether the plaintiff is entitled for decree of declaration as prayed? OPP. 2. Whether the suit is not maintainable in the present form as alleged? OPD 3 ( 2025:HHC:34581 ) 3. Whether the plaintiff has no cause of action to file this suit as alleged? OPD. 4. Whether the plaintiff has no locus standi as alleged? OPD. 5. Whether the plaintiff is estopped from filing the suit, as alleged? OPD. 6. Whether the suit is not properly valued, as alleged? OPD. 7. Relief. 6. Issue No.1 was answered in affirmative, whereas all other issues were answered in negative. 7. The suit of the plaintiff was partly decreed. The suit property was declared to be joint Hindu ancestral property and, thus, plaintiff was declared to have to a share therein. The relief of injunction was however denied. 8. Learned First Appellate Court has reversed the findings rendered by the learned trial Court and has held that the suit property was not the Hindu ancestral property for the reason that the same was not proved to have been inherited by defendant No.1 Data Ram from his father’s father, 9. In this manner, the learned First Appellate Court has dismissed the suit of the plaintiff in entirety. 10. This appeal was admitted on 02.06.2016 on the following substantial questions of law: - 4 ( 2025:HHC:34581 ) 1. Whether the learned Court below has not appreciated documents Ex. P-5, Ex. P-6 and Ex. P-7 correctly? 2. Whether the learned Court below has failed to take into consideration the fact that plaintiff/appellant was one of the coparceners and failed to comply the law correctly? 3. Whether the learned Court below has erred in not properly construing Section 6 of the Hindu Succession Act, which governs the field of devolution of interest in the coparcenary property? 11. I have heard learned counsel for the parties and have also gone through the entire record carefully. 12. Evidently, both the Courts have proceeded to decide the suit by assuming facts which were not even pleaded in the plaint. As per the averments made in the plaint, the suit land was previously owned by forefathers of defendant No.1 and it had remained as joint Hindu ancestral property. It was further submitted that the plaintiff being grandson of defendant No.1 and son of defendant No.2 was also a member of the said joint Hindu Family and as such had acquired share in the same. 13. Thus, there was no specific plea that coparcenary ever existed in between the plaintiff and his forefathers. None of the necessary ingredients to prove the nature of the 5 ( 2025:HHC:34581 ) suit property as the coparcenary property can be found in the plaint. The plaintiff could have cause of action to file the suit only if he could plead and prove his right to the suit property as coparcener. 14. No specific issue had also been framed on the aspect of the suit property being the coparcenary property. 15. The Joint Hindu Family cannot be construed as Hindu coparcenary, which is a much narrow body than the joint family. It includes only those persons who acquire by birth interest in the joint or coparcenary property. The essence of coparcenary under Mitakshara Law is unity of ownership. According to the true norms of an undivided family governed by Mitakshara Law, no individual member of that family, while it remains undivided can predicate that he (that particular member) has a definite share. The coparcenary property is held in collective ownership by all the coparceners. Where, therefore, there was no factum to show existence of Mitakshara coparcenary, the source of property was not clear, and the manner in which the properties were in possession was not clear, and the evidence on record suggested that the parties were in separate possession, it would lead to the conclusion of separate possession and 6 ( 2025:HHC:34581 ) enjoyment. Once, separate possession and enjoyment have been found, a presumption of partition could be drawn. 16. Plaintiff has placed reliance on jamabandis for the year 2003-2004, exhibited on record as Exhibits P-1 to P-4. It was admitted case of the parties that defendant No.1 was son of Thakru, who had died in 1941. The mutation of inheritance of the estate of Thakru, Ex. P-7 reveals that it was inherited by his two sons i.e. Data Ram (defendant No.1) and Parshotam. The land shown in jamabandi Ex. P-1, nowhere reflects Parshotam or his legal heirs to be co-owners. Data Ram son of Thakru has been shown to be exclusive owner in possession thereof. In Jamabandis Ex. P-2 to P-4 though the legal heirs of Parshotam have also been shown as co-owners with Data Ram in the suit land but their separate possession have been recorded. That being so, both the Courts have misdirected themselves by rendering their findings on the aspect of coparcenary, whereas there was no factual foundation available to establish such fact. 17. Thus, the substantial questions of law as noticed above are accordingly answered against the appellant/plaintiff. 18. In result, this Court though has not concurred with the reasons assigned by the learned First Appellate Court, 7 ( 2025:HHC:34581 ) nonetheless the result will not change. The instant appeal is dismissed; the suit of the plaintiff is also ordered to be dismissed in entirety for the reasons stated hereinabove. 19. Decree sheet be prepared accordingly. 20. All pending applications also stand disposed of. Records be sent back forthwith. (Satyen Vaidya) Judge 14th October, 2025. (jai)