REGULAR SECOND APPEAL No.2658 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2658 of 2008 DATE OF DECISION: FEBRUARY 16, 2011 Ram Lal .... Appellant Versus Karam Chand & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Arvind Kashyap, Advocate for the appellant. Mr. Kapil Aggarwal, Advocate for respondent No.1. * * * * L.N. MITTAL, J. (ORAL) Ram Lal-defendant No.1 having failed in both the courts below is in second appeal. Suit was filed by Kamal Chand-respondent No.1 against appellant-defendant No.1 and against respondents No.2 to 5 as proforma defendants No.2 to 5. Plaintiff and defendants No.1 to 3 are sons of Som Nath whereas defendants No.4 and 5 are daughters of Som Nath. Plaintiff's case is that Kamal Chand, since deceased, was also son of Som Nath. He was owner in possession of the suit property having purchased it vide sale deed dated 03.07.1974 from Tara Chand. Kamal Chand died issueless and unmarried on 27.12.1982. Accordingly the suit property was inherited by the present parties and their parents. Their parents also died subsequently i.e. father Som Nath in April 1996 and mother Kaushalya Devi in December, 1997. Accordingly, parties are joint owners in possession of the suit property to the extent of 1/6th share each. The plaintiff sought partition of the suit property. Defendant No.1 contested the suit and pleaded that he is sole REGULAR SECOND APPEAL No.2658 OF 2008 -2- owner in possession of the suit property having been in possession since the year 1970. Kamal Chand was not owner thereof nor Tara Chand was its owner. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Fatehagarh Sabib vide judgment and decree dated 02.08.2006 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by learned District Judge, Fatehgarh Sahib vide judgment and decree dated 03.06.2008. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiff produced sale deed dated 03.07.1974 whereby Kamal Chand purchased the suit property. The said sale deed was never challenged by anybody. Som Nath was present, at the time of execution of the sale deed, on behalf of purchaser Kamal Chand. On the other hand, defendant No.1 has failed to lead any evidence has to how he is exclusive owner or in possession of the suit property. There is concurrent finding by both the courts below against defendant No.1. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The said finding, therefore, does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination regarding the said finding. Learned counsel for the appellant, however, vehemently contended that defendant No.1 had executed sale deed dated 12.02.1998 of the suit property in favour of his son Pankaj Kumar and the said sale deed REGULAR SECOND APPEAL No.2658 OF 2008 -3- was challenged by Kamal Chand-plaintiff herein by filing separate suit, which has been dismissed vide judgment dated 31.03.2005, Exhibit D-2. It was contended that the instant suit is, therefore, barred by res judicata. I have carefully considered the aforesaid contention but find no merit therein. The aforesaid contention is completely beyond the pleadings and, therefore, cannot be looked into. Even if judgment dated 31.03.2005 in the other suit was passed during the pendency of the instant suit, even then defendant No.1 could raise the plea of res judicata by amendment of written statement. Being mixed question of law and facts, the plea of res judicata cannot be allowed to be raised without foundation of pleadings. Secondly it cannot be said whether judgment dated 31.03.2005 has assumed finality or not. Had there been any pleadings about it, the plaintiff could have responded to it by taking his own stand as to whether the aforesaid judgment dated 31.03.2005 have attained finality or not and whether the same pertained to the suit property or not or by taking any other plea that could be available to him. Thirdly, judgment and decree date 31.03.2005 are not proved to be related to the property involved in the instant suit. Boundaries of the property involved in the instant suit are different from the boundaries of the property involved in judgment dated 31.03.2005. Site plan attached with sale deed challenged in the said other suit has also not been produced. Consequently, plea of res judicata cannot be accepted. For reasons aforesaid, I find no merit in the instant second appeal, which is accordingly, dismissed. (L. N. MITTAL) JUDGE 16th February, 2011 'raj'