R.S.A. No. 1670 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1670 of 2005 (O&M) Date of decision: 31.03.2009 Kuldip Singh ....appellant versus Mewa Sing and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Satnam Singh, Advocate, for Mr. ABS Wasu, Advocate, for the appellant. Mr. H.S. Diwana, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 17.1.2005 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for joint possession with a consequential relief of permanent injunction has been ordered to be dismissed. The plaintiff brought a suit on the pleadings that the property in the hands of defendant/respondent No. 1 i.e. his father, was coparcenary Joint Hindu Family property, in which the plaintiff/appellant had 1/4th share being a coparcener along with defendants No. 2 and 3, who are the brothers of the plaintiff/appellant. R.S.A. No. 1670 of 2005 (O&M) -2- The suit was contested with regard to maintainability of the suit, as framed and also that the suit property was self-acquired property and not ancestral property in the hands of respondent/defendant No. 1. The learned Courts below on appreciation of evidence have held that the property in the hands of defendant/respondent No. 1 was self-acquired property, as the same was acquired by way of sale deed, the decree of the Court, and 'Will' in his favour. The plaintiff/appellant failed to prove the ancestral nature of the property in the hands of defendant No. 1. The suit filed by the plaintiff/appellant was ordered to be dismissed, and the appeal also met with the same fate. The learned counsel for the appellant contends that this appeal raises the following substantial question of law: - "Whether the learned Courts below failed to notice that 'Will' of ancestral coparcenary property could not be made nor by way of 'Will' nature of property could be changed?" In support of the substantial question of law, the learned counsel for the appellant contends that once the plea raised by the defendants was that it was self-acquired property, it was for defendant No. 1 to prove by leading evidence, as to how the property was acquired under the 'Will' and from whom. Once the defendant failed to do so, the learned Courts below should have drawn inference and held that the property in the hands of defendant No.1 continues to be ancestral coparcenary property. However, this contention is totally misconceived. It was for R.S.A. No. 1670 of 2005 (O&M) -3- the plaintiff/appellant to have proved the ancestral nature of the property, as the plaintiff was to stand on his own legs to prove his case. Furthermore, once it was proved that the property in the hands of defendant No. 1 was acquired by way of sale deed, decree and on the basis of 'Will', and different properties got merged, whole of the property was to be treated to be self-acquired property by defendant No. 1. No fault can be found with the concurrent finding of fact recorded by the learned Courts below. The substantial question of law raised does not arise for consideration in this appeal. No merit. Dismissed. (Vinod K. Sharma) Judge March 31, 2009 R.S.