R.S.A.No. 4375 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4375 of 2008 (O&M) Date of decision: 3.7.2009 Mohinder Singh and others ......Appellants Versus Sathu Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vipin Mahajan, Advocate, for the appellants. **** SABINA, J. Plaintiffs Mohinder Singh, Sukhwinder Singh and Kashmir Singh filed a suit for declaration to the effect that they were entitled to the share of deceased Teja Singh in the suit property. The suit of the plaintiffs was dismissed by the Civil Judge (Jr.Divn.) Gurdaspur vide judgment and decree dated 18.7.2005 and in appeal, the same were upheld by Additional District Judge (Adhoc), Fast Tract Court, Gurdaspur vide judgment and decree dated 6.10.2008. Hence, the R.S.A.No. 4375 of 2008 (O&M) 2 present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The brief facts of the case are that the plaintiffs have filed the present suit for declaration claiming themselves entitled to the shares of deceased Teja Singh in respect of the land in dispute as detailed and described in the head note of the plaint on the allegations that the plaintiffs are the sons of Shiv Singh son of Moola Singh. Shiv Singh father of the plaintiffs is stated to be the brother of deceased Teja Singh, while defendant No.1 and 2 are stated to be the brother and sister of deceased Teja Singh. The other defendants are also stated to be the relation of deceased Teja Singh being the brothers, widow and sons and daughters of sister of deceased Teja Singh. The land in suit is stated to be the ownership of Thakar Dwara Bhagwan Narayan Ji and as per case set- up by the plaintiffs, deceased Teja Singh was cultivating possession of the said land along with Sadhu Singh and Dalip Singh, as Gar Maroosian, under the above said owner. Teja Singh above said is stated to have expired on 27.3.1991 without leaving and issue. The plaintiffs being the nephew of deceased Teja Singh, are claiming themselves to be the legal heirs of deceased Teja Singh R.S.A.No. 4375 of 2008 (O&M) 3 along with other legal heirs are thus entitled to the share of the land in dispute being the legal heirs of the deceased Teja Singh. With these submissions in brief, the plaintiffs have come up with present suit for declaration with consequential relief of possession of the above said land. 3. Notice of the suit was issued to the defendants and in response thereto only defendants Nos. 1,3,4,5,6 and 13 came forward to contest the case of the plaintiff. The other defendants failed to appear despite having being served and hence they were proceeded against exparte. The appearing defendants as stated above, in their written statement have raised the Preliminary Objections as to maintainability of the suit and that the suit is barred by time. On merits, the defendants have admitted the plaintiffs to be the son of Shiv Singh, brother of Teja Singh deceased. The defendant No.1 stated to be the brother of deceased Teja Singh and defendants No. 3,4,5,6, and 13 are the sons, daughters and widow of Dalip Singh deceased. The ownership of the land in suit is that of Thakardawara Bhagwan Narian Pandori Mahantan has also been admitted by the defendants. It is submitted the defendants that defendant No.1 is in possession of the land which was earlier in possession of R.S.A.No. 4375 of 2008 (O&M) 4 Teja Singh and that the plaintiffs are not in possession of Teja Singh and that the plaintiffs are not in possession of any portion of the suit land. It is alleged that the plaintiffs have got no right, title or interest to claim any interest in respect of the share of Teja Singh deceased. The date of death of deceased Teja Singh has also been admitted by the defendants while asserting that as Teja Singh died issueless, his estate has been inherited by defendant No.1 being his real brother. It is alleged that the plaintiffs have no right to succeed the estate of deceased Teja Singh with the submissions, the defendants have made a prayer for dismissal of the plaintiff’s suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the declaration as prayed for? OPP 2. If so, whether he is entitled for the possession of the suit property? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is barred by time? OPD 5. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that no interference by this Court is called for. R.S.A.No. 4375 of 2008 (O&M) 5 The case of the plaintiffs is that Shiv Singh, their father, and defendant No. 1 were brothers of deceased Teja Singh. Defendant No.2 was sister of deceased Teja Singh. Defendant Nos. 3 to 12 were children of late Dalip Singh, brother of Teja Singh. The remaining defendants were also relatives of deceased Teja Singh. The suit land was owned by Thakar Dwara Bhagwan Naryayan Ji and deceased Teja Singh was in cultivating possession of the suit land along with Sadhu Singh and Dalip Singh as tenants. Teja Singh died issueless on 27.3.1991. Plaintiffs being nephew of Teja Singh claimed themselves to be legal heirs of Teja Singh and hence, filed a suit for declaration and consequently relief of possession of the suit property. In order to prove their case, plaintiff No.1 Mohinder Singh appeared in the witness box as PW-1 and deposed as per the contents of the plaint. Piara Singh and Tilak Raj (PW-2 and PW-3 respectively) corroborated the statement of PW-1. The case of the defendants was that defendants No.1 and 2 being brother and sister of deceased Teja Singh fell in category of Class II legal heirs of deceased Teja Singh as per the Schedule annexed to Hindu Succession Act, 1956. The plaintiffs, on the other hand, fell in Class IV category of legal heirs of deceased Teja Singh and hence, their claim was liable to be rejected. Defendant Nos. 1 and 2 being brother and sister of deceased Teja Singh fall in category of Class II of the legal heirs, R.S.A.No. 4375 of 2008 (O&M) 6 whereas, the plaintiffs fall in category of Class IV of the legal heirs. The suit of the plaintiffs was thus, liable to be dismissed. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 03, 2009 anita