R.S.A. No. 4029 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4029 of 2008 (O&M) Date of decision: 8.12.2008 Ranjit Kapoor and another ..Appellants v. Anupam Kapoor and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Hitesh Kaplish, Advocate for the appellants. .. Rajesh Bindal J. The plaintiffs are in appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by them for separate possession by way of partition was dismissed. Briefly, the facts are that the parties to the suit are closely related as real brothers and their family. The claim for separate possession by way of partition was made to the following extent: “Amended suit for separate possession by way of partition of 1/4th share of plaintiff No.1 in the following properties: I) 1/3rd share of one residential house bearing municipal house No. XXIII/28, situated in Moh. Kapooran, Phagwara, District Kapurthala shown by red colour in site plan attached. II) Three shops pucca built bearing No. BXL-33, which are bounded as under: East: Shop of Harmesh Lal Kapoor; West: Shop of plaintiff No.2 North: Railway Road South: Plot of Balraj Kapoor (deceased) Situated at Railway Road, Phagwara, District Kapurthala which are shown by red colour in the site plan attached. And also suit for separate possession by way of partition of ¾ share of the plaintiffs in the following properties: III) One plot measuring 0K-11Marlas situated on Railway Road, Phagwara, which is just behind the property No. II shown by R.S.A. No. 4029 of 2008 [2] blue colour in the site plan attached and the same is bounded as under: East: Property of Harbans Lal Kapoor; West: Property of Harwinder Singh North: Shop of Yog Raj Kapoor (deceased) South: Property of Upkar Diesel IV) Property bearing No. XXIII/350, situated at Mohalla Kapooran, Phagwara, District Kapurthala bounded as under: East: Property of Sham West: Temple North: Road South: Temple” In addition to above, permanent injunction was also prayed for restraining the respondents-defendants from alienating or transferring any specific portion or more than their shares in the suit property. Both the courts below non-suited the appellants-plaintiffs finding their case to be totally misconceived. Brief description of the family tree and their relations would be appropriate. Balraj Kapoor was the head of the family, who died on 22.12.1984. Chand Kapoor is wife/widow of Balraj Kapoor. Balraj Kapoor had three issues-- two sons, namely, Yog Raj and Ranjit Kapoor and one daughter, namely, Rama Rai. Yog Raj son of Balraj Kapoor died in the year 1996. He was survived by his widow Anupam Kapoor and two daughtes, namely, Aloka Malik and Richa Maini. Chand Kapoor wife of Balraj Kapoor died on 17.10.2003, during pendency of the litigation. The suit was filed by Chand Kapoor widow of Balraj Kapoor, Ranjit Kapoor and Rama Rai, son and daughter of Balraj Kapoor respectively against Anupam Kapoor widow of Yog Raj son of Balraj Kapoor and her two daughters, namely, Aloka Malik and Richa Maini. Learned counsel for the appellants submitted that in the family settlement, which was arrived at way back in 1975, by way of a judgment and decree of the civil court dated 4.2.1975, two properties, namely, residential house in Mohalla Kapooran, Phagwara, bearing No. XXIII/350 and one agricultural plot, measuring about 2 kanals lying behind 10 shops on Railway Road, Phagwara and some small fixed deposit receipts were retained by Balraj Kapoor for himself and rest of the property was divided amongst his two sons and wife. The claim made by the appellants-plaintiffs in the suit was resisted by the respondents-defendants on the plea that subsequent to the court decree, as R.S.A. No. 4029 of 2008 [3] mentioned above, a family settlement was arrived at between the parties on 31.5.1997 which was duly signed and all the properties were partitioned and since then the parties are in separate possession thereof. Considering the material on record and also the fact that the document executed by the parties on 31.5.1997 was nothing else but reduced into writing a settlement which was arrived at on 8.2.1997, whereby the property mentioned therein were partitioned and further referring the judgments of Hon'ble the Supreme Court, the learned courts below found that the same was not required to be registered. The document was found to be admissible in evidence. Learned counsel for the appellants submitted that the document should not have been considered by the learned court below, as the same was not proved in any manner known to law. House No. XXXIII/350, situated in Mohalla Kapooran, Phagwara and land measuring two kanals were kept by Balraj Kapoor and these properties were required to be partitioned amongst the legal heirs after his death. A perusal of the family settlement arrived at between the parties clearly establishes that the claim regarding the property situated in Mohalla Kapooran, Phagwara was clearly dealt with in the family settlement and it was mentioned therein that the same will fall in the ownership of Anupam Kapoor widow of Yog Raj to the exclusion of all other legal heirs and they will not have any objection in its transfer in her name in the municipal records. Besides this, one property bearing No. BLK 1032/1 Deepak Nagar, Civil Lines, Ludhiana and plot No. K-370, Green Field, Faridabad was also dealt with in the family settlement which had gone to the share of other brothers. There is no whisper about the same in the suit filed by the appellants. Both the above referred properties had gone to them in a family settlement after the death of Balraj Kapoor. A bare perusal of the facts narrated above shows that in fact the properties of deceased-Balraj Kapoor were partitioned amongst the family members, but still in a greed to get more and more, the litigation was initiated. The respondents are widow and two daughters of Yog Raj, one of the sons of Balraj Kapoor. In addition to the property situated in Mohalla Kapooran, which had gone to the respondents in the family settlement, claim was sought to be made with regard to a plot of 11 marlas of land situated on Railway Road with the contention that the same was also kept by Balraj Kapoor in the judgment and decree suffered by him on 4.2.1975. However, a perusal thereof shows that it was land measuring 2 kanals. The contention of learned counsel for the appellants that out of 2 kanals, he had sold 1 kanal and 9 marlas of land and it was only 11 marlas left out is not borne out from any material on record, as R.S.A. No. 4029 of 2008 [4] nothing has been referred to in that regard. The learned courts below have rightly appreciated the evidence led by the parties. The conclusion arrived at cannot be faulted with. No substantial question of law arises. Accordingly, the present appeal is dismissed. (Rajesh Bindal) Judge 8.12.2008 mk