RSA No.3361 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3361 of 2010 (O & M) Date of Decision: 24.08.2010 Nita Sharma .....Appellant Versus Rakesh Sharma and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. R.M. Singh, Advocate for the appellant. L. N. MITTAL, J (ORAL) This is second appeal by Nita Sharma -defendant No.5, who is also one of the legal representative of her mother Shanti Devi alias Harpiari-defendant No.1, proforma respondent Nos.2 to 4 being the other legal representatives of defendant No.1. Suit was filed by Ram Narian plaintiff-respondent No.1 against his sister Shanti Devi (defendant No.1) and 3 brothers Lakshmi Narain, Ram Dayal and Bhawani Parshad (defendant Nos.2 to 4). Bhawani Parshad has since died and is represented by respondent Nos.7 to 11 whereas defendant Nos.2 and 3 are respondent Nos.5 and 6 in the instant second appeal. Appellant was defendant No.5 in the trial Court. She is daughter of defendant No.1. Suit land measuring 14 kanals 8 marlas was admittedly owned and possessed by Bal Mukund predecessor of plaintiff and defendant Nos.1 to 4 and their mother Godawari Devi. Godawari Devi also died in the year 1988. Plaintiff's case is that Bal Mukund had executed Will dated 05.09.1967 in favour of plaintiff and defendant Nos.2 to 4 only and accordingly they RSA No.3361 of 2010 -2- became owners in possession of the suit land in equal shares i.e 1/4th share each. There was subsequent decree dated 01.02.1993 passed in favour of defendant Nos.2 to 4 against the plaintiff herein whereby defendant Nos.2 to 4 were declared to be owners in possession of half share of the suit land as well as house and the plaintiff herein (who was defendant in the said suit) was declared to be owner in possession of the other half share of the suit land as well as house. Defendant No.1-Shanti Devi who was initially impleaded as party to the said suit was given up. However, on the basis of decree dated 01.02.1993, mutation was wrongly sanctioned for 1/4th share in the suit property in favour of Shanti Devi. The plaintiff, therefore, challenged decree dated 01.02.1993 as well as the consequent mutation. Defendant No.1 vide decree dated 13.12.1997 transferred 1/4th share in the suit land to defendant No.5. The said decree dated 13.12.1997 was also challenged in the suit. Defendant Nos.2 to 4 were proceeded ex parte in the trial Court. Defendant No.1 filed written statement contesting the suit. The same written statement was also adopted by defendant No.5. Plaint allegations were controverted. It was pleaded that plaintiff and defendant Nos.2 to 4 are co-sharers to the extent of 3/4th share only and defendant No.1 had 1/4th share in the suit land which now stands transferred to defendant No.5, who is co-sharer in joint possession of the suit land to the extent of 1/4th share. Will dated 05.09.1967 pleaded by the plaintiff to have been executed by Bal Mukund was repudiated. It was alleged that inheritance mutation No.5567 of Bal Mukund was correctly sanctioned in favour of plaintiff and defendant RSA No.3361 of 2010 -3- Nos.1 to 4 and their mother Godawari Devi and after death of Godawari Devi, plaintiff and defendant Nos.1 to 4 became owners in possession of the suit land in equal shares i.e 1/5th share each. However, plaintiff and defendant Nos.2 to 4 tried to usurp the share of defendant No.1, who refused to transfer the same. Learned Civil Judge (Junior Division), Palwal vide judgment and decree dated 07.08.2007 dismissed the plaintiff's suit. Plaintiff preferred first appeal against judgment and decree of the trial Court. Defendant no.5 filed cross-objection in the said appeal. Learned Additional District Judge, Faridabad vide judgment and decree dated 07.09.2009 disposed of the appeal and the cross- objections and held that judgment and decree dated 01.02.1993 are not binding on the rights of defendant Nos.1 and 5 nor any right was conferred on them by the said judgment. It was thus held that defendant No.1 had 1/5th share in the suit land and the same is not effected by decree dated 01.02.1993. Transfer of share by defendant No.1 in favour of defendant No.5 in excess of 1/5th share in the suit land vide judgment and decree dated 13.12.1997 has been set aside to that extent, thereby allowing the appeal partly. Cross-objections were also allowed partly to the extent that decree dated 01.02.1993 is not binding on defendant Nos.1 and 5 to the extent of 1/5th share in the suit land. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that as per decree dated 01.02.1993, defendant Nos.2 to 4 have become owners of half share of the suit land and plaintiff became owner of RSA No.3361 of 2010 -4- half share of the suit land, but in fact all of them had 1/5th share each. The contention is completely irrelevant because even according to own version of the appellant, defendant No.1 had only 1/5th share in the suit land which was transferred to defendant No.5, who also claimed only the said 1/5th share in the suit land. The same has been protected and affirmed by the lower appellate Court. It is beyond comprehension as to why still the instant second appeal has at all been preferred by defendant No.5, whose claim as set up in the written statement has been upheld by the lower Appellate Court. Defendant Nos.1 and 5 did not claim more than 1/5th share in the suit land and the same has been protected and affirmed by the lower appellate Court. Consequently, the instant second appeal is completely misconceived and devoid of merit, which is frivolous and vexatious and was not required to be filed at all. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. 24.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE