Regular Second Appeal No. 1067 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1067 of 2009(O&M) Date of decision : June 01, 2011 Mohinder Singh ....Appellant versus Pritam Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arvind Bansal, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 3078.C of 2009 For reasons mentioned in the application, delay of 41 days in refiling the appeal is condoned. RSA No. 1067 of 2009 Mohinder Singh plaintiff having been non-suited by the courts below is in second appeal. Plaintiff alleged that suit land measuring 37 kanals 7 marlas being 1/6th share of 224 kanals 4 marlas land described in para no. 1 of the plaint is ancestral coparcenary property in the hands of plaintiff's father Bhag Singh defendant no. 1 qua plaintiff and defendant no. 3 Surjit Singh Regular Second Appeal No. 1067 of 2009(O&M) -2- both sons of Bhag Singh. The plaintiff also alleged that sale of 23 kanals 10 marlas land out of the suit land by defendant no. 1 in favour of defendant no. 2 Pritam Singh (who is father-in-law of defendant no. 3) vide sale deed dated 10.9.1999 is illegal and null and void being result of fraud and collusion, without consideration and legal necessity and the same is not binding on the plaintiff. The plaintiff also alleged that out of the suit land plaintiff is in cultivating possession of 19 kanals land as per mutual arrangement. The defendants threatened to dispossess the plaintiff from the said land. Permanent injunction restraining the defendants from doing so was also claimed. Injunction restraining defendants no. 1 and 2 from further alienating the suit land was also sought. The plaintiff alleged that suit land was purchased in the name of defendant no. 1 by plaintiff's grand- father from Joint Hindu Family funds and therefore, the suit land is Joint Hindu Family property of plaintiff and defendants no. 1 and 3. Defendant no. 1 broadly controverted the plaint allegations and inter alia, pleaded that suit land was self acquired property of defendant no. 1 and therefore, he was fully competent to sell the same. Sale deed dated 10.9.1999 regarding 23 kanals 10 marlas land out of the suit land executed by defendant no. 1 in favour of defendant no. 2 was pleaded to be legal and valid and binding on all. It was denied that plaintiff and defendants no.1 and 3 constitute Joint Hindu Family. The plaintiff is rather residing in a different village and district. It was denied that plaintiff is in possession of 19 kanals land out of the suit land. The plaintiff has no concern with the suit land. Relationship between the parties was not disputed. Regular Second Appeal No. 1067 of 2009(O&M) -3- Defendant no. 2 also contested the suit and broadly took the same stand as that of defendant no. 1. It was also pleaded that defendant no. 2 is bonafide purchaser of 23 kanals 10 marlas for valuable consideration and is owner in possession thereof. Defendants no. 4 to 8 who are daughters of defendant no. 1 also contested the suit and took the same stand as that of defendant no. 1. Learned Additional Civil Judge (Senior Division), Guhla vide judgment and decree dated 19.1.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Kaithal vide judgment and decree dated 8.8.2008. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. There is only oral self serving statement of the plaintiff as PW1 which is not sufficient to prove ancestral or coparcenary nature of the suit land in the hands of defendant no. 1. Plaintiff also examined PW2 but said witness was not produced for further cross-examination and therefore, his testimony cannot be taken into consideration. There is no cogent evidence to depict that the suit land was purchased in the name of defendant no. 1 by his father i.e. by plaintiff's grand-father from Joint Hindu Family funds. On the other hand, plea of the plaintiff himself reveals that there is sale deed of the suit land in favour of defendant no. 1. It would depict that suit land was self acquired property of defendant no. 1. No documentary evidence has been produced to depict ancestral nature of the suit land in the hands of Regular Second Appeal No. 1067 of 2009(O&M) -4- defendant no. 1. Counsel for the appellant vehemently contended that vide judgment and decree dated 11.9.1999 Ex. P5 and P6, plaintiff's suit was decreed against defendant no. 1 and his brother Kehar Singh injuncting them from alienating the suit land but in spite thereof defendant no. 1 alienated part of the suit land by way of impugned sale deed dated 10.9.1999. The contention cannot be accepted because perusal of judgment and decree sheet Exs. P5 and P6 reveals that in that case injunction against alienation was sought against Kehar Singh only who was defendant no. 2 in that suit. On the other hand, in the instant case the said judgment and decree were not even pleaded so as to provide opportunity to the defendants to rebut the same. In addition to it, the said judgment and decree are dated 11.9.1999 whereas the impugned sale deed is dated 10.9.1999 i.e. executed before the passing of the said judgment and decree. Consequently, the said judgment and decree do not come to the rescue of the plaintiff-appellant. In the instant case whole claim of the plaintiff is on the basis of ancestral nature of the suit land which the plaintiff has miserably failed to prove. Plaintiff's claim of possession over 19 kanals land out of the suit land is also not proved because no revenue record depicting his possession thereon has been produced. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below non-suiting the plaintiff-appellant is justified by the evidence on record. The said finding is based on proper appreciation of evidence and is not shown to be perverse Regular Second Appeal No. 1067 of 2009(O&M) -5- or illegal in any manner. Consequently, the said finding does not warrant interference in second appeal. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) June 01, 2011 Judge 'dalbir'