RSA No.1693 of 2011 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1693 of 2011 (O & M) Date of Decision: 08.04.2011 Hari Kishan ……Appellant Versus Balbir and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Munish Kumar Garg, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.4734-C of 2011. The application is allowed, subject to all just exceptions. Main appeal. Plaintiff-Hari Kishan has filed the instant second appeal, having failed in both the Courts below. Rattan Singh-defendant No.1 (since deceased) was father of plaintiff and defendant Nos.3 and 4 and Jai Bhagwan (father of defendant No.2). Defendant Nos.5 and 6 are sons of defendant No.4. Case of the plaintiff-appellant is that defendant No.1 executed release deed dated 08.07.2004 registered on 19.07.2004 of 1/10th share in RSA No.1693 of 2011 (O & M) - 2 – 424 kanals 14 marlas land in favour of defendant Nos.2 to 6, but the said land was coparcenery property of plaintiff and defendant Nos.1, 3 and 4, who are joint owners in possession thereof as coparceners and, therefore, the impugned release deed is illegal, null and void. Defendant Nos.2 to 6 contested the suit and inter alia pleaded that defendant No.1 owned and possession half share in 425 kanals 9 marlas land. He distributed it in 5 equal shares among himself and his four sons i.e plaintiff, defendant Nos.1, 3 and 4 and father of defendant No.2 and consequently, consent decree dated 18.03.1970 was passed in civil suit No.210 dated 07.03.1970 whereby all the five of them became owners in possession of 1/10th share ( 1/2 x 1/5) each of the aforesaid land. Thus defendant No.1 became exclusive owner in possession of his 1/10th share and, therefore, release deed thereof executed by defendant No.1 in favour of defendant Nos.2 to 6 is legal and valid and accordingly, defendant Nos.2 to 6 are exclusive owners in possession thereof. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jind vide judgment and decree dated 16.09.2010 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Jind vide judgment and decree dated 01.03.2011. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Facts pleaded by defendants have been admitted by the plaintiff in the witness box and have also been proved by copies of RSA No.1693 of 2011 (O & M) - 3 – judgment and decree dated 18.03.1970 Ex.D-2 and Ex.D-3. It is thus established that defendant No.1, who inherited half share in the total land from his father, distributed it in five equal shares among himself and all his four sons including the plaintiff and consent decree dated 18.03.1970 was passed accordingly. Consequently, defendant No.1 became exclusive owner in possession of the share left with him on the aforesaid distribution. The said share, therefore, cannot be said to be coparcenary or Joint Hindu Family Property of plaintiff and defendant Nos.1, 3 and 4. Consequently, defendant No.1 was competent to execute release deed thereof in favour of defendant Nos.2 to 6 and the said release deed is legal and valid and does not suffer from any infirmity. The plaintiff admitted in cross- examination that 30/35 years back, share in the 50 acres land was given to each brother and defendant No.1 also kept his share with him. They got their share vide decree-sheet dated 18.03.1970. The plaintiff admitted that thereafter defendant No.1 became exclusive owner in possession of his share. In view of this admission of plaintiff himself, it is manifest that the impugned release deed is legal and valid and defendant No.1 was competent to execute the same regarding his exclusive share. Faced with the aforesaid situation, learned counsel for the appellant came out with a new plea that in fact defendant No.1 wanted to execute release deed in favour of plaintiff also and, therefore, the release deed executed in favour of defendant Nos.2 to 6 only is result of fraud. The contention has been noticed simply to be rejected because the contention is completely beyond the pleadings. The release deed was not challenged on this ground. On the contrary, this contention runs contrary to the pleading of the plaintiff-appellant because according to him, RSA No.1693 of 2011 (O & M) - 4 – defendant No.1 was not even competent to execute the release deed. Moreover, release deed on this ground could be challenged by defendant No.2 himself and not by the plaintiff, but defendant No.2 never challenged the same. From the aforesaid discussion, it becomes manifest that the suit filed by the plaintiff-appellant is completely frivolous and meritless and has been rightly dismissed by the Courts below. The instant second appeal is also frivolous and meritless. This litigation generated by the plaintiff-appellant is result of his greed and dishonesty. He was given due share in the ancestral land as per his own admission and as established by documentary evidence in the form of judgment and decree dated 18.03.1970, but inspite thereof, he filed the instant suit. His dishonesty and malafide intention is further born out from the fact that he concealed the factum of judgment and decree dated 18.03.1970 in the plaint, whereby equal distribution of land had been made by the father among his four sons, in addition to himself. Concurrent finding recorded by the Courts below against the plaintiff-appellant is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. The said finding, therefore, does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Such frivolous litigation needs to be curbed by imposing costs. Accordingly, the appeal is dismissed in limine with costs of Rs.5000/- to be RSA No.1693 of 2011 (O & M) - 5 – deposited by the appellant with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose. (L. N. MITTAL) JUDGE 08.04.2011 A.kaundal