RSA No.465 of 2008 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.465 of 2008 (O & M) Date of Decision: 24.01.2011 Ved Singh and others ……Appellants Versus Smt. Raja and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vikram Punia, Advocate for the appellants. Mr. Rameshwar Malik, Advocate for the respondent No.1. Mr. Surinder Dhull, Advocate for respondent Nos.2 and 3. L.N. MITTAL, J (ORAL) RSA No.465 of 2008, CM No.1433-C of 2008 & CM No.11293-C of 2010. This is second appeal by plaintiffs i.e plaintiff No.1-Ved Singh as appellant No.1 and appellant Nos.2 to 4 as legal representatives of original plaintiff No.2- Bijender Singh-since deceased. Both the Courts below have dismissed the suit. Original plaintiffs and defendants/respondents are brothers and sisters. It appears that suit land measuring 54 kanals 18 marlas was owned by their father. On his death, both the plaintiffs and all the three defendants inherited 1/5th share each. The defendants thus held 3/5th share in the suit land. Plaintiffs’ case is that in a family partition on 15.06.1985, the entire suit land along with other village immoveable property in Abadi Deh RSA No.465 of 2008 (O & M) - 2 - was given to both plaintiffs in equal shares and the defendants were left with no share in it. However, the defendants have now resiled from the said partition. Accordingly, plaintiffs sought declaration that plaintiffs are owners in possession in equal shares of 3/5th share of the suit land which stands recorded in the names of the defendants. Defendants contested the suit and denied the alleged family partition. They claimed to be owners in possession of 3/5th share of the suit land standing in their names. Learned Civil Judge (Junior Division), Sonepat vide judgment and decree dated19.01.2007 dismissed the plaintiffs’ suit. First appeal preferred by plaintiff No.1 only has been dismissed by learned District Judge, Sonepat vide judgment and decree dated 23.11.2007. Feeling aggrieved, plaintiff No.1 and legal representatives of plaintiff No.2 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. During pendency of the appeal, respondent Nos.2 and 3 have filed CM No.11293-C of 2010 for recording compromise Annexure A-1 regarding their share in favour of the plaintiffs. Learned counsel for the appellants and respondent Nos.2 and 3 state that decree regarding 2/5th share of respondent Nos.2 and 3 be passed in favour of the plaintiffs. The application is supported by joint affidavit of respondent Nos.2 and 3. Thus the case has been lawfully compromised regarding share of respondent Nos.2 and 3. The aforesaid application is, therefore, allowed. Along with appeal, appellants filed CM No.1433-C of 2008 for additional evidence for producing affidavits of respondent Nos.2 and 3 to depict that they had not filed the written statement. However, this application for additional evidence is rendered infructuous in view of RSA No.465 of 2008 (O & M) - 3 - compromise effected by respondent Nos.2 and 3 with the appellants. The application for additional evidence is, therefore, dismissed as having been rendered infructuous. Learned counsel for the appellants contended that respondent Nos.2 and 3 have admitted the mutual partition and, therefore, factum of mutual partition is proved. The contention cannot be accepted. Merely because respondent Nos.2 and 3 at the stage of second appeal have admitted the alleged partition; the said admission will have no adverse bearing against claim of respondent No.1, who is contesting the factum of mutual partition. On the other hand, both the Courts below after appreciating the evidence, have come to concurrent finding against the plaintiffs regarding the plea of alleged partition. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. There is only oral evidence led by the plaintiffs regarding alleged partition. However, said oral evidence has been rebutted by sworn statement of defendant-respondent No.1. Lower appellate Court is the final Court of fact. It has not been shown that the Courts below have misread or misappreciated the evidence. Consequently, concurrent finding of fact recorded by the Courts below cannot be interfered with in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. For the reasons aforesaid, the instant second appeal is allowed partly against respondent Nos.2 and 3 only in view of compromise effected by them with appellants, and judgments and decrees of the Courts below are set aside and suit filed by plaintiffs is decreed partly declaring that they are owners in possession of 2/5th share in the suit land standing in the names of respondent Nos.2 and 3. However, the suit qua 1/5th share of RSA No.465 of 2008 (O & M) - 4 - the suit land standing in the name of respondent No.1 remains dismissed. The appeal stands disposed of accordingly. (L. N. MITTAL) JUDGE 24.01.2011 A.kaundal