Regular Second Appeal No. 2380 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2380 of 2010 Date of decision : June 30, 2010 Ishwar Singh ....Appellant versus Inder Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RN Lohan, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Ishwar Singh having remained un-successful in both the courts below has approached this Court by way of instant second appeal. Suit was filed by respondent Inder Singh against the appellant. Both of them are brothers. The plaintiff's case is that both the parties are co-sharers in equal share in the suit property measuring 9 marlas which is a bara in which house stands constructed. The plaintiff sought separate possession of his half share in the suit property by way of partition. The defendant, inter-alia, pleaded that in oral family settlement about 30 years prior to filing of suit, the disputed bara fell to the exclusive share of the defendant who is exclusive owner in possession thereof since then and it was defendant alone who constructed double storey house in the suit land. The plaintiff was given ancestral Haveli constructed within the laldora of the village whereas suit bara was given exclusively to the Regular Second Appeal No. 2380 of 2010 -2- defendant. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 13.6.2008 decreed the plaintiff's suit holding the parties to be having half share each in the suit property and accordingly preliminary decree for partition was passed. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 23.3.2010. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant reiterated the stand of the defendant-appellant that the suit land had fallen to the exclusive share of the defendant in oral family settlement 30 years prior to the filing of the suit. The contention cannot be accepted. The suit was filed on 17.7.2001 and therefore, the alleged family settlement according to the defendant-appellant had taken place some time in the year 1971. However, admittedly as per consent decree dated 25.1.1978 suffered in favour of both the parties by their father Mani Ram, both the plaintiff and the defendant herein were declared to be owners in possession in equal shares of the suit land along with agricultural land measuring 81 kanals 3 marlas in all. If under alleged oral family settlement effected in the year 1971, the suit land had fallen to the exclusive share of the defendant, then decree dated 25.1.1978 would have been suffered in favour of defendant alone and not in favour of both the parties. The said suit in which consent decree dated 25.1.1978 was passed had been filed jointly by the plaintiff and the defendant herein Regular Second Appeal No. 2380 of 2010 -3- claiming themselves to be owners of the suit land along with other land in equal shares. Consequently, the said consent decree completely negatives the stand of the defendant regarding alleged oral family settlement. In addition to the aforesaid, the defendant himself also filed suit for partition of agricultural land in revenue court and included the present suit land in the said partition suit. However, since house stands constructed in the suit land, the revenue court held that the jurisdiction to partition the suit property was not with the revenue court which proceeded with partition of the remaining agricultural land and parties were relegated to remedy before civil court for partition of suit property. If under alleged oral family settlement effected in the year 1971, the defendant had become exclusive owner of the suit land, the defendant would not have included the suit land in suit for partition instituted by the defendant in the revenue court. It would also, therefore, depict that the parties are joint owners in possession of the suit property in equal shares. For the reasons recorded herein above, I find no merit in the instant second appeal. The concurrent finding of the courts below based on proper appreciation of evidence does not suffer from any illegality or perversity so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) June 30, 2010 Judge 'dalbir'