R. S. A. No. 2495 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2495 of 2011 (O&M) Date of Decision : May 31, 2011 Santosh and others .... Appellants Vs. Subhash and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. B. K. Bagri, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 6817-C of 2011 : Allowed as prayed for. C. M. No. 6818-C of 2011 : Allowed as prayed for. C. M. No. 6819-C of 2011 : Although averments made in the application, accompanied by affidavit, do not make out sufficient ground for condonation of delay of 234 days in re-filing appeal, yet keeping in view the death of appellant no.1 Santosh, during pendency of appeal, who might have received R. S. A. No. 2495 of 2011 (O&M) 2 communication from the counsel for removing the objections and adopting liberal approach, delay of 234 days in re-filing the appeal is condoned. C. M. No. 6820-C of 2011 : This is application for impleading legal representatives of Santosh – original appellant no.1 (since deceased). It is alleged that Santosh died on 21.09.2010 i.e. during pendency of the appeal, leaving behind two sons Rajinder Singh and Jagdish (appellants no.2 and 3), as mentioned in paragraph 3 of the application, as her only legal heirs. The application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions and Rajinder Singh and Jagdish – original appellants no.2 and 3 respectively are ordered to be impleaded as legal representatives of appellant no.1 Santosh (since deceased), for the purpose of this appeal. Necessary correction in the `Memo of Parties' be made by the Office. Main Appeal : Legal representatives of Bhikha Ram – defendant no.35 have filed the instant second appeal. Phool Singh – plaintiff (since deceased and represented by his son and legal representative Subhash – respondent no.1) filed suit against proforma respondents no.2 to 58 and Bhikha Ram (represented by appellants) for possession of suit land described in paragraph 4 of the plaint. The plaintiff alleged that he had 1/24th share in joint land measuring 405 R. S. A. No. 2495 of 2011 (O&M) 3 kanals 19 marlas. The said joint land was partitioned by Revenue Court vide order dated 05.09.1985 and Sanad Taksim was prepared on 21.05.1986. Out of the joint land, 12 kanals 02 marlas land was kept joint, whereas the remaining land was partitioned. Suit land mentioned in paragraph 4 of the plaint was allotted to the plaintiff in the said partition. Accordingly, plaintiff sought possession of the said suit land. Suit was resisted by the defendants on various grounds. Even factum of partition by Revenue Court was denied. It was also averred that Revenue Court had no authority to partition the land. The land was not partitioned on the basis of standard area. The joint land had been partitioned by mutual family settlement in the year 1965. Ownership of the plaintiff over the suit land was denied. Defendant no.35 alleged that after the year 1986, defendants installed tubewell in the suit land without any objection by the plaintiff. Defendant no.35 claimed to have become owner of the land of Killa No.22, where the tubewell existed. Learned Civil Judge (Junior Division), Rewari, vide judgment and decree dated 13.09.2006, decreed the plaintiff's suit. First appeal preferred by defendants no.1, 55, 57, 58 and legal representatives of defendant no.36 has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Rewari, vide judgment and decree dated 09.03.2010. Feeling aggrieved, legal representatives of defendant no.35 have filed the instant second appeal. R. S. A. No. 2495 of 2011 (O&M) 4 I have heard learned counsel for the appellants and perused the case file. At the outset, it has to be noticed that the appellants herein did not prefer any first appeal against judgment and decree of the trial court. Consequently, judgment and decree of the trial court attained finality as against the appellants herein. As a necessary corollary, appellants have no right to maintain the instant second appeal directly without having filed first appeal. Even on merits, appellants have no case. It has been proved by documentary evidence in the form of Sanad Taksim that suit land was allotted to plaintiff in partition by the Revenue Court. The said partition has attained finality. Consequently, plaintiff is entitled to possession of the suit land and his suit has been rightly decreed. Learned counsel for the appellants contended that tubewell stands installed in Khasra no.178/2/1 and possession thereof is being delivered to the plaintiff in execution of the decree, which cannot be done. The contention is completely misconceived and meritless. Firstly, this is Regular Second Appeal against judgments and decrees of the courts below and any action of the Executing Court is not under challenge or adjudication in the instant second appeal. Secondly, in the written statement, defendant no.35 (predecessor of the appellants) pleaded that his tubewell existed in Killa No.161/22 and there is no plea in the written statement that tubewell of defendant no.35 existed in Khasra No. 178/2/1. The contention is thus R. S. A. No. 2495 of 2011 (O&M) 5 completely beyond pleadings. The contention is also not substantiated by any evidence on record. The contention is, therefore, negatived. For the reasons aforesaid, I find no merit in the instant second appeal, which is not only meritless, but is also completely frivolous. Suit of the plaintiff has been rightly decreed by the courts below. Concurrent finding recorded by the courts below is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. The said finding, therefore, does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is accordingly dismissed in limine. May 31, 2011 ( L. N. MITTAL ) monika JUDGE