R.S.A. No.1181 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1181 of 2008 Date of Decision:23.10.2008 Sada Ram .....Appellant Vs. Joginder and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Rakesh Gupta, Advocate for the appellant. None for the respondents. **** HARBANS LAL, J. This second appeal is directed against the judgment/ decree dated 31.1.2008 passed by the Court of learned Additional District Judge, Kurukshetra whereby he dismissed the appeal preferred against the judgment/ decree dated 1.12.2006 (Due to typographical mistake in the judgment of Ist Appellate Court, this date has been typed as 1.2.2006) rendered by the Court of learned Additional Civil Judge (Senior Division) Pehowa, whereby she dismissed the suit with costs. The brief facts giving rise to this case are that the plaintiff is the owner in possession of residential house and shop as described in the plaint. Previously, his wife Dropadi since deceased was owner in possession of the suit property. The defendants No.1 to 3 are real brothers, whereas defendants No.4 to 6 are sisters-in-law (bhabis) of Dropadi, who during the life time of her mother had started living in her parental house at Ismailabad where the plaintiff also lived as “Ghar Jamai” (resident son-in-law). There being a dispute between Dropadi and her brothers, she had filed a suit for permanent injunction against the latter in which the matter was compromised and as per terms and conditions of such compromise, she was R.S.A. No.1181 of 2008 -2- declared as owner in possession of the suit property. During her lifetime, she had executed a valid Will dated 6.12.1997 in favour of the plaintiff declaring him to be owner of the suit property. She expired on 29.6.2002. Since then, the plaintiff had been living in the disputed house as owner. The plaintiff had performed all her last rites. The defendants were alleging themselves to be the near relatives of the deceased under Hindu Succession Act and under this garb they were trying to grab the suit property. On 20.2.2004, they came on the spot and tried to remove the articles forcibly and illegally, but their attempt was foisted. The plaintiff requested the defendants several times to admit his claim, but to no effect. On these allegations, this suit has been filed for declaration to the effect that the plaintiff is owner in possession of the property in dispute. The defendants in their written statement, inter-alia pleaded that the plaintiff has not given the correct description of the suit property; that the civil suit filed by his wife was already dismissed by the then Sub Judge First Class, Kurukshetra and the same was not disposed of, on the basis of the alleged compromise. As alleged, the earlier Civil Suit No.551/89 was dismissed by the aforesaid Court under Order 9 Rule 8 of the Code of Civil Procedure because of non- appearance of Dropadi deceased vide order dated 30.10.1995. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit property as detailed in para no.1 of the plaint? OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP 3. Whether the suit of the plaintiff is not maintainable in R.S.A. No.1181 of 2008 -3- the present form? OPD 4. Whether plaintiff has no locus standi and cause of action to file the present suit? OPD 5. Whether civil court has got no jurisdiction to try and entertain the present suit? OPD 5-A. Whether the suit of the plaintiff is barred by the principles of resjudicata? OPD 6. Whether the plaintiff has concealed true and material facts from the court? OPD 7. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD 8. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the suit as noted supra. Feeling aggrieved therewith, the plaintiff went up in appeal which has also been dismissed by the Court of learned Additional District Judge, Kurukshetra as noted earlier. Being undaunted and dissatisfied therewith, he has preferred this appeal. None has put in appearance on behalf of the respondents to argue this appeal. I have heard the learned counsel for the appellant, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Rakesh Gupta, Advocate representing the appellant strenuously urged that the Courts below have gravely erred in ignoring the documents Mark A and Mark B, i.e., the family settlement arrived at between the appellant's wife Dropadi and the respondents. He further R.S.A. No.1181 of 2008 -4- argued that these documents though set up in the plaint, having not been denied specifically should be deemed to have been admitted in view of the provisions of Order 8 of the Code of Civil Procedure. He further maintained that it is an admitted case of the parties that the disputed house was the ownership of Mansa Ram father of Dropadi and on his death, even if the settlement Mark A is ignored, nonetheless Dropadi had a share therein being a daughter and on her death, the appellant inherited her share being her husband and thus, the findings returned by both the Courts below against the appellant are liable to be reversed. I have well considered the rival contentions. The learned trial Court has observed as under:- “Having considered the rival contentions of learned counsels for both the parties, it is hereby observed that the plaintiff claimed himself to be owner in possession of the suit property as detailed in para no.1 of the plaint and on perusal of para no.1 of the plaint, it is apparent on the record that house number and shop number etc. has not been mentioned therein. There is no documentary record to prove the fact that the plaintiff was owner of the suit property. The plaintiff has stated that the disputed house was inherited by his wife from her father and the same came to her share in the family settlement between her and her brothers. This family settlement has also been placed on record as mark-A and has not been proved according to the Evidence Act. Moreover, in this compromise, there is a house referred to as the house in possession of Daropadi Devi and there are no boundaries given in the said compromise. R.S.A. No.1181 of 2008 -5- Therefore, the identity of the disputed house with that of the house given in the compromise is not established. Once the plaintiff has claimed the fact that this house was got inherited by him from his wife the ownership of Daropadi was necessary to be proved on record. Neither there is any document on record regarding the ownership of Mansa Ram i.e. Father of Daropadi over the said house nor there is any document on record regarding the ownership of Daropadi over the said house. There is only mark-A the compromise, which no where reflects that the house was the same as that mentioned in the plaint. As Daropadi has not proved to be owner of the said house, the Will Ex.P1 does not have any relevancy in the eyes of law in respect to the said house. It is merely written in the Will that all the moveable and immovable property of Daropadi Devi bequeathed in favour of Sada Ram i.e the present plaintiff but this does not mean that the house in dispute was also bequeathed to him by Daropadi Devi without being owner thereof. The present plaintiff has claimed the relief of permanent injunction claiming himself to be owner in possession of the suit property on the basis of title but neither the title nor possession of the plaintiff over the suit land is proved.” The learned lower appellate Court held as under:- “Learned trial court while recording findings under issues no.1 and 2 has rightly come to the conclusion that there is no documentary evidence available on the file on the basis of R.S.A. No.1181 of 2008 -6- which it may be concluded that plaintiff was owner of the suit property. The version of plaintiff is that his wife Smt. Dropadi has inherited the property left by her father and same fell to her share by way of family settlement between Smt. Dropadi and her brothers. Copy of said compromise has been placed on file as Mark A. However, learned trial court has rightly come to the conclusion that no reliance can be placed upon marked document as the same has not been proved in accordance with provisions of Evidence Act. Even the alleged compromise is vague because the boundaries of house, allegedly in possession of Smt. Dropadi have not been shown and that way the disputed property cannot be connected with the house if any given to Smt. Dropadi. Learned trial court has rightly come to the conclusion that there is no documentary evidence available on file showing the ownership of Mansa Ram and on the basis of that ownership of Smt. Dropadi in her capacity as daughter of Mansa Ram.” It is apparent on the face of the afore-extracted observations that no view contrary thereto is warranted on the given evidence. That being so, the concurrent findings returned by both the Courts below are not liable to be disturbed. More to the point, no substantial question of law arises for determination by this Court in this appeal. Resultantly, this appeal is dismissed. October 23, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No