RSA No.4271 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEALNo.4271 of 2008 DATE OF DECISION: 12 th MAY, 2011 Mahinder Singh & another .... Appellants Versus Ram Kanwar & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Surender Pal, Advocate for Mr. Rakesh Nehra, Advocate for the appellants. Mr. Rajbir Sehrawat, Advocate for respondent No.1. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by Mahinder Singh and Samunder Singh (legal representatives of defendant No.2 Ram Saroop since deceased) having lost in both the courts below. Respondent no.1-plaintiff Ram Kanwar filed suit against Dilbagh- defendant No.1/respondent No.2, Ram Saroop defendant No.2 (since deceased and represented by appellants) and Surender defendant/respondent no.3 for partition of suit land measuring 1 Kanal 1 Marla comprised of Rectangle No.413 of Khewat No.917/878 (Gair Mumkin plot) alleging that plaintiff has half share in the suit plot and he is in possession of a part thereof as depicted in the site plan. Defendants who have the remaining half share in the suit plot are in possession of remaining part of the plot which is in excess of their share. The plaintiff, therefore, sought partition of the suit plot. RSA No.4271 of 2008 -2- Defendant No.1 broadly denied the plaint allegations. It was pleaded that plaintiff is neither cosharer in the suit plot nor is in possession of any part thereof. Defendant No.1 and his brother Mahinder Singh are in possession of the suit plot for more than thirty years. Their possession started from 03.03.1984. Now they have raised pucca construction in the suit plot. They have also become owners of the suit plot by adverse possession. Various other pleas were also raised. Defendant No.3 in his written statement admitted that plaintiff is owner of the suit plot to the extent of half share. It was also admitted that plaintiff is in possession of part of the plot, which is less than his share. Defendant No.3 thus admitted the claim of the plaintiff. Legal representatives of defendant No.2 in their written statement (mentioned to be written statement of defendants No.3 and 4) broadly denied the plaint allegations. It was denied that plaintiff is cosharer to the extent of half share in the suit plot. Sale deed by Balbir Singh and others in favour of the plaintiff is illegal and void ab initio. Balbir Singh was not son of Ram Chander. His birth entry dated 24.03.1959 depicting his birth on 10.03.1959 is recorded almost two years after death of Ram Chander, who died on 04.05.1957 and his inheritance mutation regarding land of a different village was sanctioned on 04.07.1958. Answering defendants claimed themselves to be in possession of the suit land since consolidation of holdings in the year 1958. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sonepat vide judgment and decree dated 25.08.2007 decreed the plaintiff's suit for partition and passed preliminary decree of partition. First appeal preferred by legal RSA No.4271 of 2008 -3- representatives of defendant No.2 has been dismissed by learned District Judge, Sonepat vide judgment and decree dated 29.07.2008. Feeling aggrieved, legal representatives of defendant No.2 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Perusal of Jamabandi Exhibit P-4 for 1986-87 reveals that there were large number of cosharers in the suit land. Vide consent judgment and decree dated 26.02.1991 Exhibit D-1, Ram Singh was declared owner in possession of the suit land to the extent of 1/8th share, which was previously in the name of Nihali widow of Daryao Singh. Mutation No.4510 Exhibit P-5 reveals that present plaintiff purchased 3/8th share in the suit plot from Ram Singh etc. vide registered sale deed dated 11.09.1991 and the same was accordingly mutated in the favour of plaintiff. Similarly perusal of mutation No.4639 Exhibit P-6 reveals that plaintiff purchased 1/8th share in the suit land and other land from Smt. Bharpai vide registered sale deed dated 16.06.1994. The plaintiff thus became owner of the suit land to the extent of half share. The same was accordingly reflected in subsequent Jamabandis for 1996-97 Exhibit P-7 and 2001-02 Exhibit P-8. It is thus evident from this documentary evidence that plaintiff is cosharer of the suit land to the extent of half share. The aforesaid reliable documentary evidence has not been rebutted by the defendants in any manner. There is only bald and oral self-serving statement of Mahinder Singh appellant No.1 as DW-1. It is not sufficient to rebut the aforesaid documentary evidence. Learned counsel for the appellants contended that Balbir Singh one of the vendors of the plaintiff was not son of Ram Chander because he was RSA No.4271 of 2008 -4- allegedly born almost two years after the death of Ram Chander. This contention is based on plea of the appellants in the written statement that inheritance mutation of Ram Chander regarding land of some other village was sanctioned on 04.07.1958 recording his death on 04.05.1957, whereas birth entry of Balbir Singh as son of Ram Chander was recorded on 24.03.1959 depicting his birth on 10.03.1959. However, there is not even an iota of evidence on record in support of this version pleaded in the written statement. The said version thus remains completely unsubstantiated. Neither alleged birth entry of Balbir Singh has been produced nor alleged inheritance mutation of Ram Chander has been produced to depict the date of death of Ram Chander or to depict the date of birth of Balbir Singh nor there is any other document in this regard. The contention is thus devoid of merit being not substantiated by any evidence. Appellants also have no right or locus standi to challenge the inheritance of share of Ram Chander in suit land by Balbir Singh alongwith other legal heirs. Learned counsel for the appellants also contended that the suit land fell to the share of defendants in family settlement. However, there is neither any such pleading by the defendants nor there is any material on record to substantiate the said contention. It may be added that according to revenue record mentioned hereinbefore, defendants have only half share in the suit land. The plaintiff is not disputing the same. Consequently defendants have no right or locus standi to challenge the sale of remaining half share of the suit land to the plaintiff by other cosharers. For the reasons aforesaid, it is manifest that the plaintiff has RSA No.4271 of 2008 -5- successfully proved that he is cosharer in suit land to the extent of half share. Consequently his suit for partition has rightly been decreed by the courts below. Concurrent finding of fact recorded by the courts below to this effect is fully justified by the cogent documentary evidence on record. The said finding cannot be said to be perverse of illegal in any manner nor it is based on misreading or mis-appreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. On the contrary, evidence on record can lead to the said finding only and no other finding. Defendants' version stands completely unsubstantiated. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly appeal is dismissed, being bereft of any merit. (L. N. MITTAL) JUDGE 12th May, 2011 'raj'