R.S.A. No.1180 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1180 of 2009(O&M) Date of Decision:25.07.2011 Pritam Singh ......Appellant Versus Balwant Singh @Bant Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Tribhawan Singla, Advocate, for the appellant. Mr.Sanjiv Gupta, Advocate, for respondent No.1. **** M EHINDER S INGH S ULLAR , J.(oral) As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same in this Regular Second Appeal. However, the contour of the facts, which requires to be noticed for a limited purpose of deciding the core controversy, involved in the present appeal and emanating from the record is, that Pritam Singh son of Makhan Singh-appellant-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit for possession by way of partition of the house in dispute against his brother Balwant Singh @ Bant Singh and sisters-respondent-defendants(for brevity “the defendants”), inter alia, pleading that Makhan Singh, father of the parties, had purchased the house in question, which is still joint and has not been partitioned. He became a co-sharer after the death of Makhan Singh. He intends to separate his share from the other co-owners. He requested the defendants to partition the disputed house, but in vain, which necessitated him to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the suit for possession R.S.A. No.1180 of 2009(O&M) 2 by way of partition of the house in question against the defendants, in the manner depicted hereinabove. 2. The defendants contested the suit and filed their separate written statement(s), taking certain preliminary objections of, maintainability of the suit, court fee, cause of action and locus standi of the plaintiff. According to defendant No.1 that, since he is in possession of the disputed house for the last 30 years, so, he has become its owner by way of adverse possession. It was claimed that the plaintiff is residing at Malerkotla and he is not in possession of any part of the house in dispute. Sequelly, defendant Nos.2 to 4 claimed that being the daughters of Makhan Singh, they have equal shares in the suit property to the extent of 1/5th share each. 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. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 4. The parties to the litigation, in order to substantiate their respective pleas, brought on record oral as well as the documentary evidence. 5. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, decreed the suit of the plaintiff to the extent of half share, by means of judgment and decree dated 15.02.2008. 6. Aggrieved by the decision of the trial Court, defendant Nos.1,3 and 4 filed the appeal. The first Appellate Court modified the decree of the trial Court and held that the plaintiff is only entitled to the extent of 1/5th share and the defendants are entitled to 4/5th share in equal shares of the house in dispute, being the LRs of Makhan Singh(since deceased) in natural succession, by virtue of R.S.A. No.1180 of 2009(O&M) 3 impugned judgment and decree dated 17.01.2009. 7. Appellant-plaintiff Pritam Singh still did not feel satisfied with the impugned judgment and decree of the first Appellate Court and preferred the present regular second appeal. 8. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal in this context. 9. Ex facie, the argument of the learned counsel that since, the plaintiff is joint owner of the house in dispute to the extent of half share, so, the first Appellate Court fell in error and illegally negatived his claim, sans merit. 10. As is evident from the record that, Makhan Singh executed the Will with regard to the agricultural land only in favour of his two sons Pritam Singh- plaintiff and Balwant Singh @ Bant Singh-defendant No.1 and they have already partitioned their agricultural land in pursuance thereof. 11. What is not disputed here is that there is no specific mention of the house in question in the Will(Ex.P-4), executed by Makhan Singh in favour of their sons. Moreover, as no attesting witness of the Will was examined by the plaintiff, or produced any cogent evidence on record, therefore, the Will remained unproved in the present suit. 12. Having regard to the rival contentions of the learned counsel for the parties, to me, the trial Court has wrongly placed reliance upon the Will(Ex.P-4), which is not at all proved. Moreover, the house in dispute is not mentioned in the Will. Therefore, the trial Court has wrongly placed reliance on inadmissible evidence and committed the legal mistake. The first Appellate Court has rightly corrected the error committed by the trial Court in this relevant connection. 13. Learned counsel for the appellant did not point out any material, much less cogent, to indicate how and in what manner, any interference is called for, in the impugned judgment and decree of the first Appellate Court. R.S.A. No.1180 of 2009(O&M) 4 14. Above all, once the un-pleaded and unproved Will is ignored, then after the death of Makhan Singh, his two sons and three daughters would naturally inherit the house in dispute to the extent of 1/5th share in natural succession. The first Appellate Court through the medium of impugned judgment and decree dated 17.01.2009, has thus rightly observed as under:- “After hearing both the parties, in my opinion, the plaintiff and defendant No.1 have not claimed/pleaded in their pleadings that as from which source, they got the property. For the first time, the plaintiff has mentioned in his replication that initially the property in dispute was purchased by his father, which devolves upon the plaintiff and the defendants. Both the parties have led their evidence in support of their claim and one thing emerged that the property in dispute, as claimed by both the parties to the suit to be of their father Makhan Singh son of Kesar Singh because PW1 Pritam Singh has mentioned in his affidavit Ex.PW1/A that the house in question was purchased by his father. PW2 Harbans Kaur has mentioned in her affidavit Ex.PW2/A that the property in question was purchased by Makhan Singh PW3 Manjit Singh has tendered his affidavit Ex.PW3/A stating therein that the house in question was sold to Makhan Singh. Therefore, by the evidence of the plaintiff, it is clear that he had taken a stand that the property in question was purchased by Makhan Singh. Contrary to it, defendant Balwant Singh has placed his evidence DW1/A stating therein that his father has no connection with the house in question but in his cross-examination, he has admitted that except this house, no other house of their family is there in Bhuna. He has also admitted that about 40 years ago, he came to this house along with his father. The age of Balwant Singh as given by him when appeared into witness box as 45 years, therefore, how it can be said that in the age of 5 years, Balwant Singh DW2 could purchase the property in question, therefore, from the abovesaid evidence it is clear established that once upon a time, the house in question belongs to Makhan Singh who was father of the parties to the litigation. Now, coming to the question that as to how, after the death of Makhan Singh, plaintiff became owner of the property in question. The plaintiff has also relied upon Ex.P4 but Ex.P4 no where state that Makhan Singh has made a Will pertaining to the house in question. Even otherwise, no attesting witness of the Will Ex.P4 has been examined by the plaintiff, therefore, this Will Ex.P4 is not proved in accordance with law, so not R.S.A. No.1180 of 2009(O&M) 5 admissible in evidence. The question of title cannot be decided in this case on the basis of testimony of PW2 Harbans Kaur because regarding question of title, the testimony of PW2 Harbans Kauar does not inspire confidence.” 15. Meaning thereby, the first Appellate Court has rightly decided the real controversy between the parties and recorded the valid grounds in the impugned judgment and decree. Such judgment, containing the valid reasons, cannot possibly be interfered with by this Court, unless and until, the same is illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-reasoned decision arrived at by the first Appellate Court in this regard. 16. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff, to assail these findings. All the remaining contentions, pertaining to the appreciation of evidence, now sought to be urged on his behalf, have already been duly considered and dealt with by the first Appellate Court, in this relevant behalf. 17. Neither any question of law, much less substantial, is involved in this regular second appeal, as contemplated under Section 100 CPC, nor any other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. Therefore, the impugned judgment and decree of the first Appellate Court deserve to be and are hereby maintained in the obtaining circumstances of the case. 18. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 25, 2011 (MEHINDER SINGH SULLAR) seema JUDGE