RSA No. 501 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 501 of 2008 Date of Decision: 6.5.2008 Raj Pal Singh and another ...Appellants Versus Ram Pal and others ...Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. Navin Chowdhri, Advocate for the appellants -.- PERMOD KOHLI, J.(ORAL) This is plaintiffs' Regular Second Appeal against the concurrent findings recorded by the Courts below. Briefly stated the facts of the case are that the plaintiffs and defendant Nos. 1 and 2 are the real brothers whereas defendant No. 3 is their father. Defendant No. 3 suffered a decree dated 29.7.2000 in civil suit No. 227 of 2000, whereunder the property subject-matter of dispute was given to defendant Nos. 1 and 2. The plaintiffs, who are sons of defendant No.3, filed the present suit challenging the decree on the ground that the suit property is the ancestral and Joint Hindu Family property and defendant No. 3 had no right to part with the property in favour of defendant Nos. 1 and 2 ignoring the right and claim of the plaintiffs. Defendant No.3, however, contested the suit on the ground that the property in dispute was his self acquired property and not ancestral or Joint Hindu Family property and he has every right to transfer the same in favour of defendant Nos. 1 and 2. On the basis of the pleadings of the parties, the following issues were framed:- “1. Whether judgment and decree dated 29.7.2000 passed in Civil Suit titled Ram Pal and another Vs. Antu Ram, regarding the suit property, is illegal, null and void and liable to be set aside, on the grounds, as alleged?OPP RSA No. 501 of 2008 2 2. Whether plaintiff's are entitled for permanent injunction qua the disputed property, against the defendants, on the grounds, as alleged? OPP. 3. Whether suit of plaintiffs is not maintainable? OPD. 4. Whether plaintiffs have no cause of action to file the present suit? OPD. 5. Whether suit of the plaintiffs has not been property valued for the purpose of court fee and jurisdiction? OPD.” 6. Relief. Parties were allowed to lead evidence. Plaintiffs have produced on record the copies of judgments impugned in the suit as also some other judgments and decrees and the copy of plaint and written statement of the earlier suit and jamabandi for the years 1993-94 and 1998-99 as also the statement of defendant No. 3 made in the earlier suit subject matter of challenge in the present suit. It is, however, pertinent to note that none of the plaintiffs appeared as a witness in support of their case. Defendant No. 3 appeared as a witness and denied the claim of the plaintiffs. On the basis of the evidence on record, the trial court held that the plaintiffs have failed to lead any evidence whatsoever to establish that the suit property subject matter of impugned judgment and decree dated 29.7.2000 was the ancestral property or Joint Hindu Family property and consequently the suit filed by the plaintiffs came to be dismissed vide judgment and decree dated 13.10.2005. Aggrieved of the aforesaid decree, the plaintiff filed an appeal in the Court of Additional District Judge, Yamunanagar. The said appeal has also been dismissed vide impugned judgment and decree dated 5.10.2007. It is against the aforesaid judgment and decree that the plaintiffs have filed the present Regular Second Appeal. The only contention raised by the counsel for the appellants is that defendant No. 3 in the suit pleaded that the disputed property was a Joint Hindu Family property, as a result, the impugned judgment and decree was passed on RSA No. 501 of 2008 3 29.7.2000 and the said decree was procured on that basis and now the defendants cannot be allowed to turn around and plead that the property in dispute was the self acquired property. Both the courts have concurrently held that in the earlier suit defendant No. 3 did plead that the suit property is ancestral one. However, the Courts below particularly lower appellate court referred to jamabandis for the years 1993-94 and 1998-99 and returned a finding that the suit property is self acquired property. Defendant No. 3 has been shown the exclusive owner of the suit property in both the jamabandis. As a matter of fact, the plaintiffs have failed to lead any evidence whatsoever to establish that the property subject matter of the earlier decree was the ancestral property and none of the plaintiffs appeared as a witness to support their contention raised in the plaint. The burden to prove was upon the plaintiffs which they miserably failed to discharge. Under these circumstances, the findings recorded by the courts below cannot be interfered. No substantial question of law arises in the present appeal. For the reasons recorded above, I do not find any merit in the instant appeal and the same is hereby dismissed with no order as to costs. 6.5.2008 (PERMOD KOHLI) mk JUDGE