IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3033 of 2009 Date of Decision : August 18, 2009 Suraj Bhan, since deceased, through his legal representative Vijay Kumar Jain .....Appellant Versus Shital Parshad and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. R.K. Gupta, Advocate T.P.S. MANN, J. R.S.A. No. 3033 of 2009 -2- Suit for partition filed by the plaintiffs was decreed with costs by the learned Additional Civil Judge (Senior Division), Hansi on 10.5.2006. The plaintiffs were declared to be the owners of half share while the defendant as owner of the remaining half share of the disputed property. A preliminary decree for partition of the disputed property was passed. The parties were given opportunity to apply to the Court for passing of the final decree for the partition of the suit property by metes and bounds. The judgment and decree passed by the learned trial Court was challenged by Suraj Bhan defendant by filing the first appeal but the same was dismissed by learned Additional District Judge (Fast Track Court), Hisar on 5.11.2007. The defendant has died on 30.9.2008 and, accordingly, the present second appeal has been filed on behalf of the defendant through his son Vijay Kumar Jain, who has been impleaded as his legal representative by an order of the even date. The case of the plaintiffs, as set up by them in their plaint, was that the suit property was jointly owned and possessed by them and also by the defendant in equal shares. In the revenue record, the land was still joint and no partition had taken place. Due to the jointness of the properties, there was continuous dispute going on between the parties. The defendant, without any right, title or interest, was bent upon to alienate the valuable portion of the suit land without getting it partitioned. The defendant while filing his written statement, controverted the allegations made in the plaint by asserting that the plaintiffs had no share in the suit land. The same was exclusively owned and possessed by him. The entries in the Jamabandi showing the plaintiffs as owners in possession to the R.S.A. No. 3033 of 2009 -3- extent of half share in the suit property, were absolutely wrong and contrary to the family settlement, memorandum of which was reduced into writing on 15.6.1964 and the same was also acted upon. Plaintiff No.1 had already taken the advantage of the family settlement and, therefore, he and the remaining plaintiffs could not turn around and deny the family settlement. Vide order dated 18.7.2002, learned trial Court had framed the following issues :- 1. Whether the land in dispute as detailed and described in the head note of the plaint is joint property of the parties as alleged ? OPP 2. If issue No.1 is proved, then what is the share of the plaintiff ? OPP 3. Whether the plaintiff is entitled for a decree for permanent injunction against defendants restraining him from alienating the suit land in any manner as alleged ? OPP 4. Whether the plaintiffs have no locus standi nor have any cause of action to file the present suit ? OPD 5. Whether the suit is not maintainable in the present form ? OPD 6 Relief. As per the revenue record consisting of Jamabandies Ex.P2 for the year 1982-83, Ex.P3 for the year 1987-88 and Ex.P4 for the year 1997-98 R.S.A. No. 3033 of 2009 -4- it stood established that the plaintiffs were owners to the extent of half share in the suit property while the remaining half share was owned by the defendant. The defendant had placed reliance upon memorandum of family settlement Ex.D2, which was said to have been recorded on 15.6.1964. In order to prove the memorandum of family settlement, the defendant relied upon the testimony of Vijay Kumar Jain, who was examined as DW1. Said Vijay Kumar Jain was not a witness to the memorandum Ex.D2. The defendant himself chose to remain away by not appearing as a witness to prove the genuineness of the document. Instead, he remained contented with the fact that as Ex.D2 was 30 years old, it was admissible in evidence as such. Even in that regard , he was required to produce the original document which he failed to do so. In fact, Ex.D2 was an attested copy of the so-called memorandum of family settlement. No evidence has been brought on the record by the defendant that the same had been brought from proper custody or that the said memorandum was actually acted upon by the parties. Once it stood established that the parties were having equal shares in the suit property and they were using the property jointly and severally according to the nature of the property, the plaintiffs were justified in asking for a decree for its partition. The concurrent findings of facts arrived at by the learned Courts below regarding jointness of the suit property and regarding failure of the defendant to prove memorandum of family settlement, are based upon proper appreciation of the material evidence brought on the record. These findings cannot be termed as perverse or suffering from any illegality or infirmity. R.S.A. No. 3033 of 2009 -5- These are not liable to be upset in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as formulated by learned counsel for the appellant, do not arise for determination. Resultantly, the appeal is dismissed in limine. ( T.P.S. MANN ) August 18, 2009 JUDGE satish