Regular Second Appeal No.4383 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-7.7.2010 Nand Karan and another ...Appellants Versus Manphool and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.P.R.Yadav, Advocate for the appellants. Mr.Vinod S.Bhardwaj, Advocate for the respondents. M ehinder S ingh S ullar , J. This civil appeal is directed against the impugned judgment and decree dated 31.10.2005, whereby, the trial Court has dismissed the suit for partition/injunction of gairmumkin property in dispute, filed by Nand Karan son of Kesar and Rameshwar son of Begraj, appellant-plaintiffs (hereinafter to be referred as “the plaintiffs”), against Manphool, Ram Avtar, Jagbir alias Jogender sons of Chandu Ram, respondent-defendants (hereinafter to be referred as “the defendants”). They have also assailed the judgment and decree dated 30.4.2008, vide which, their appeal was dismissed as well by the Ist Appellate Court. 2. The compendium of the facts, relevant for disposal of the present appeal and emanating from the record, is that the plaintiffs have filed the present suit for partition of gairmumkin property in dispute and injunction, inter-alia, pleading that one Kesar, common ancestor of the parties, was owner and after his death, the property in dispute was inherited by his three sons, namely, Nand Karan (plaintiff No.1), Begraj (father of plaintiff No.2) and Chandu Ram (father of the defendants) in equal shares. Thus, the plaintiffs were stated to be owners of the said property to the extent of 2/3rd share, while the defendants to the extent of 1/3rd share, which was claimed to be joint. There remains dispute of boundaries between the co-sharers, so, the plaintiffs wanted to get the said property partitioned. Regular Second Appeal No.4383 of 2008 2 3. Levelling a variety of allegations, in all, according to the plaintiffs, they are owners of the joint property in dispute to the extent of 2/3rd share and intend to partition the same. They asked the defendants to partition it, but in vain. It necessitated them to file the present suit. On the basis of the aforesaid allegations, the plaintiffs have filed this suit for partition/injunction against the defendants, in the manner indicated here-in-above. 4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit, locus standi and cause of action of the plaintiffs and concealment of facts. On merits, the case set up by the defendants was that the plaintiffs are neither owners nor in possession of any part of the property, rather, the same is exclusively owned and possessed by the defendants. According to them, their father Chandu Ram, Nand Karan (plaintiff No.1), Begraj (father of plaintiff No.2) used to reside at village Nandha, Tehsil Charkhi Dadri alongwith their father Kesar. Kesar died about 50 years ago. After his death, Nand Karan, Begraj and Chandu Ram left village Nandha, shifted and settled in village Hazampur and since then they were in possession of their respective portions. They have already sold some portion of their plot, vide two separate agreements to sell dated 8.11.2002 and 1.8.2002 to Rohtash son of Bhura Ram. The vendees have been in physical possession of the above said portion of the plot. Tersenessly, the defendants have claimed that the plaintiffs have no right, title or interest in the disputed property. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. In the wake of pleadings of the parties, the trial Court framed the following issues for trial:- 1. Whether the property in dispute is jointly owned and possessed by the parties?OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to partition of the property in dispute by metes and Regular Second Appeal No.4383 of 2008 3 bounds, if so what are the respective shares of the parties therein?OPP 3. Whether the plaintiffs have no locus standi and cause of action to file and maintain the present suit?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the defendants have become owners in possession of the property in dispute by way of adverse possession?OPD 6. Relief 6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 7. The trial Court, on ultimate analysis of the evidence on record, dismissed the suit of the plaintiffs, vide impugned judgment and decree dated 31.10.2005. 8. Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 30.4.2008. 9. The appellants (plaintiffs) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the matter deeply, to my mind, there is no merit in this appeal. 11. However, the main contention of the learned counsel that since the plaintiffs were owners to the extent of 2/3rd share of the property in dispute, so, they were entitled to a decree for partition, is not only devoid of merit but misplaced as well. 12. The bare perusal of the record would reveal that the plaintiffs claimed that they are joint owners to the extent of 2/3rd share each and accordingly sought partition of the disputed property. In that eventuality, burden of proof was Regular Second Appeal No.4383 of 2008 4 on them and it was for the plaintiffs to prove their ownership and possession by producing cogent evidence on record. Admittedly, no document of title to prove their ownership has been brought on record by them. They have only produced on record the oral evidence in this respect. The mere bald statement of PW2 (plaintiff No.2) is not sufficient to prove their ownership in this respect. 13. It is not a matter of dispute that Kesar was the common ancestor of the parties and the plaintiffs were earlier residing with him in village Nandha. After the death of Kesar, Nand Karan (plaintiff No.1), Begraj (father of plaintiff No.2) and Chandu Ram (father of the defendants) left village Nandha and settled in village Hazampur. It means, they were not the original inhabitants of village Hazampur and they might have purchased their houses to settle in this village. The plaintiffs did not produce on record any sale deed or any other document of title to prove that the property in dispute was purchased by them. Meaning thereby, they have miserably failed to prove their co-ownership of the disputed property. The remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants (plaintiffs), have already been duly considered and dealt with by the Courts below, in this relevant connection. 14. As is evident from the record, 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 Courts below have recorded the concurrent findings of fact that the plaintiffs have utterly failed to prove their co- ownership and joint possession over the disputed property and thus not entitled to decree for partition in this regard. Such pure concurrent findings of fact based on the 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 appellants, so as to take a contrary view, than that of the Regular Second Appeal No.4383 of 2008 5 well reasoned decision already arrived at by the Courts below, in this regard. 15. Meaning thereby, 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 in the second appeal, in view of 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, so, no interference is warranted in the impugned judgments/decrees of the Courts below, as contemplated under section 100 CPC, in the obtaining circumstances of the instant case . 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 17. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 7.7.2010 Judge AS