Regular Second Appeal No.3341 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3341 of 2009 (O&M) Date of Decision:-23.8.2011 Sudesh Kumar Jain ...Appellant Versus Vijay Kumar and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Pritam Saini, Advocate for the appellant. Mr.C.B.Goel, Advocate for respondent No.1. M ehinder S ingh S ullar , J . (Oral) The conspectus of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Vijay Kumar son of late Beni Parshad Jain respondent No.1-plaintiff (for brevity “the plaintiff”) filed the suit against his brother Sudesh Kumar Jain appellant-defendant No.1 and other defendants (for short “the defendants”) seeking a decree for possession by way of partition of his 1/7th share in the properties in dispute, inter-alia pleading that Beni Parshad, father of the parties, was owner and in possession of the suit properties. In the wake of his death on 30.10.1975, they became owners and in possession of the properties in dispute in a natural succession in equal share to the extent of 1/7th share each. According to the plaintiff that the properties have not been partitioned and he had been getting less benefit than his actual share. He requested the defendants several times to get the suit properties partitioned by metes and bounds, but they always avoided it and ultimately refused to partition the same. It necessitated the plaintiff to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit against the defendants for a decree Regular Second Appeal No.3341 of 2009 (O&M) -2- of possession by way of partition of the properties in question to the extent of 1/7th share. 2. The defendants contested the suit. Defendant No.1 filed his separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit; Court fees, limitation, jurisdiction of the civil Court, cause of action and locus standi of the plaintiff. The case set up by the contesting defendant No.1, in brief in so far as relevant, was that the property situated at Delhi was purchased, constructed and renovated by himself and he has been in its possession since 1960 as owner. After the death of Beni Parshad, this property was got mutated in the name of Smt.Leela Wati Jain, mother of the parties and she executed a Will in favour of defendant No.1. In this manner, he claimed the exclusive ownership of the property, situated at Delhi on the basis of Will. He has also set up a plea of oral/private partition. The plaintiff was claimed to have received ` 12,000/- in lieu of his share and as such he had no right to file the present suit. Defendant Nos.2 to 4 admitted the claim of the plaintiff and did not file any written statement. However, defendant Nos.5 and 6 toed the line of pleadings as contained in the written statement filed by contesting defendant No.1. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations of the written statements and reiterating the pleadings contained in the plaint, the plaintiff filed the replications. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case. 4. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 5. The trial Court, after taking into consideration the entire evidence on record, decreed the suit of the plaintiff to the extent of 1/7th share in the suit Regular Second Appeal No.3341 of 2009 (O&M) -3- properties and passed a preliminary decree and restrained the defendants from changing the nature of the indicated properties or creating third party interest therein, till the final decree for partition is drawn, by means of impugned judgment and decree dated 21.12.2005. 6. Aggrieved by the decision of the trial Court, defendant No.1 filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 20.3.2009. 7. Appellant-defendant No.1 still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal. That is how I am seized of the matter. 8. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 9. Ex-facie, the only celebrated argument of learned counsel for the appellant-defendant No.1 that since the plaintiff has not included the properties situated at Panchkula and shops at village Sadhaura, so, his suit is bad for partial partition, sans merit. 10. As is evident from the record that Beni Parshad (since deceased) was owner and in possession of the properties in dispute and after the death of his wife, his four sons and three daughters (parties to the suit) became owners and in joint possession of the suit properties to the extent of 1/7th share each. The contesting defendants refuted the claim of the plaintiff only on the ground that defendant No.1 is the owner of the property situated at Delhi, in pursuance of the Will executed in his favour by Smt.Leela Wati Jain, mother of the parties and that oral/private partition had already taken place between them. He has no where specifically pleaded in the written statement that the properties, situated at Panchkula and shops at village Sadhaura, were not included in the suit in this connection. Regular Second Appeal No.3341 of 2009 (O&M) -4- 11. Moreover, the contesting defendant No.1 has neither produced any cogent evidence of alleged Will executed in his favour by his mother nor proved the oral/private partition between the parties. The Will did not see the door of the Court. So, in the absence of any plea and cogent evidence on record in this respect, the contrary contentions of learned counsel for the appellant-defendant No.1 “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 12. Thus, it would be seen that the trial Court, having analyzed the entire material on record, has recorded the finding of fact based on the evidence that defendant No.1 has failed to prove the Will, private partition and partial partition. Not only that, the decision of the trial Court was upheld by the Ist appellate Court, by means of impugned judgment dated 20.3.2009, which, in substance, is (paras 22 and 28) as under:- “22. The defendant took contradictory plea as regard his ownership over the property situated at Delhi. At one part of his pleadings, he denied the ownership of his father and in other leg he took up the plea of execution of Will by his father as regard the suit properties. His very plea that his father executed the Will as regard to the property situated in Delhi shows that he admitted the ownership of his father over the property situated at Delhi. This substantiated the version of the plaintiff that Beni Parsad was absolute owner of the properties in question. So, in view of it, the plaintiff being son, one of the LRs of the Beni Parsad has right to succeed to the property by way of natural succession, if no other hurdle befalls on succession. To put stop to the process of natural succession, the defendant has taken up the plea that his father had executed the Will dated 17.12.73 Mark-A. 28. The findings of learned lower court on other issues are also well reasoned. The defendant had taken the plea of partial partition and has assailed the maintainability of the suit. It has been pleaded by the defendant that the plaintiff has not taken into consideration the other properties i.e. the property situated in Panchkula, shops situated in Sadhaura and other houses. So, the suit on account of partial partition is bad. The defendant led no evidence to show the existence of other Regular Second Appeal No.3341 of 2009 (O&M) -5- properties. In the cross-examination, he admitted that the property situated at Panchkula has been sold by Mohan Lal but led no evidence to substantiate his version. As far as the shop situated at Sadhaura, the plaintiff has stated in his cross-examination regarding the said shop litigation is pending. No other evidence was led on record by the defendant to show that there were any properties which were not included in the present case. The plaintiff stated that all the properties except the property in dispute have been left and regarding which the present case has been filed. No suggestion was given to the plaintiff by defendant side to contradict him. The defendant thus failed to substantiate the plea of partial partition by leading any cogent and positive evidence in said regard. Mere his long possession over the property situated at Delhi, dies not make him absolute owner, by way of adverse possession unless he specifically plead date and time of his taking possession adverse to true owner and his manner of asserting his ownership adverse to the rights of owner. His pleadings and evidence on plea of adverse possession are insufficient. Plaintiff being so-sharer has right to seek partition. There is no limitation to file suit for partition, on basis of the title. Suit of plaintiff cannot be said to be time barred, particularly defendant failed to establish the plea of adverse possession.” 13. Moreover, the learned counsel for the appellant-defendant No.1 did not point out any material, much less cogent, to show as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant behalf. 14. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the above mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant- Regular Second Appeal No.3341 of 2009 (O&M) -6- defendant No.1, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 15. No other meaningful argument has been raised by the learned counsel for the appellant-defendant No.1 to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 16. In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 23.8.2011 Judge AS Whether to be referred to reporter?Yes/No