RSA No.3867 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3867 of 2009 Date of decision: July 13, 2011. Jai Karan ... Appellant(s) v. Pardeep Kumar & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Pankaj Maini, Advocate, for the appellant(s). Shri U.K. Agnihotri, Advocate, for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): CM No.7637-C of 2011 This is an application for bringing on record the legal representatives of respondent No.2 – Parveen Kumar, as mentioned in para 4 of the application. The application is allowed subject to all just exceptions and the legal representatives of respondent No.2 - Parveen Kumar are ordered to be impleaded in the array of parties. Registry is directed to amend the memo of parties. RSA No.3867 of 2009 In the present regular second appeal, defendant to the suit has assailed the judgment rendered by the lower appellate court where the finding given by the trial court that the parties have failed to prove their ownership of the suit land, has been reversed, and it has been ordered that RSA No.3867 of 2009 -: 2 :- the joint land should be partitioned. Briefly stated, one Maya Ram was survived by his two sons Balram Singh and Jai Karan and two daughters, Sunehri Devi and Bal Devi, and widow Rajo Devi. A pedigree table has been drawn in para 2 of the plaint. Pardeep Kumar and Parveen Kumar, plaintiffs No.1 & 2, are the sons of Balram Singh, i.e., grandsons of Maya Ram. In para 3 of the plaint it was specifically stated that Smt. Rajo Devi, mother of plaintiff No.3 and defendant appellant Jai Karan and Bal Devi, sister of plaintiff No.3 had transferred their respective shares in favour of sons of Balram Singh, i.e., plaintiffs No.1 and 2 whereas Sunehri Devi, sister of plaintiff No.3, had transferred her share in favour of appellant-defendant. The following specific averment was made in the plaint:- “... In this way, the plaintiffs are the owners of 3/5th shares in equal shares; and defendant is the owner of remaining 2/5th share out of the suit property. The certified copies of the site plan of the houses prepared by the Local Commissioner and site plan of the house and bara are attached herewith.” In the written statement filed, appellant-defendant Jai Karan admitted that Balram is owner to the extent of 1/5 share and defendant is owner and in possession to the extent of 2/5 share. He further admitted that Bal Devi, their sister, is owner to the extent of 1/5 share and so his mother Rajo Devi. It was not disputed that Bal Devi and Rajo Devi had transferred their shares in favour of plaintiffs and respondents No.1 and 2 whereas Sunehri Devi had transferred her share in favour of the appellant-defendant. After the trial court had drawn the issues, parties led their evidence. The trial court returned the following findings:- “19. As per suit filed by the plaintiffs the suit property is RSA No.3867 of 2009 -: 3 :- agricultural land though as per pleadings of the parties, construction has been raised on the same. However, no proof of ownership of this land has been brought on file. It has neither been pleaded nor proved on files as to who was the original owner of this property and how and when this property devolved upon the plaintiffs, defendant and other co-sharers as mentioned in the plaint. Before seeking partition, the plaintiffs have to prove title in the suit property whose partition is sought by them. But in the case in hand no document proving the ownership of plaintiffs has been brought on file to prove this fact. Counsel for the plaintiffs has argued that the defendant has also admitted that the suit property has devolved on them but again mere admission of property whose prove of ownership is available by way of revenue record has not been proved, cannot be accepted. It was for the plaintiffs to prove that the land mentioned in the plaint, has devolved upon them but they have failed to do so. Similarly, no benefit of release deed and gift deed tendered in plaintiffs evidence by the plaintiffs can be given to them as they are also private documents. The plaintiffs were required to prove the ownership of the person who have executed these documents in favour of plaintiffs No.1 and 2.” This finding, according to me, has been rightly set aside by the lower appellate court. The lower appellate court rightly held that the plaintiff proved on record the release deed and gift deed by Rajo Devi and Bal Devi in their favour. This fact was proved by PW1 Darshan Kumar Aggarwal, PW2 Kashmiri Lal Verma, PW3 Mam Raj and PW4 Bal Kishan. The plaintiff-respondents had examined scribe and attesting witnesses of release deed and gift deed, therefore, the finding given by the trial court that the plaintiffs have failed to prove that they are owners in possession, was rightly reversed by the lower appellate court. RSA No.3867 of 2009 -: 4 :- Shri Pankaj Maini, Counsel for the appellant, has read Ex.D1 which is at page No.75 of the record. This document depicts that on 7.3.2001 the property was divided between Balram – plaintiff No.3 and Jai Karan, appellant-defendant. Though the document is signed by Pardeep Kumar and Parveen Kumar, plaintiffs no.1 and 2, this document is silent regarding distribution of shares of Rajo Devi and Bal Devi. Admittedly, Rajo Devi and Bal Devi had transferred their 1/5th share each in favour of plaintiff/ respondents No.1 and 2, therefore, the lower appellate court was well justified to say that in the family settlement, no share has been given to plaintiffs No.1 and 2, especially when they proved on record that Rajo Devi and Bal Devi had transferred 1/5 share each in their favour. The lower appellate court further held that Jai Karan, present appellant-defendant, appearing as DW3 has not uttered a single word regarding the partition. After hearing Counsel for the parties and examining the record, I find that no inference is warranted to disturb the well reasoned finding given by the lower appellate court while appreciating the evidence of the witnesses. The lower appellate court has returned a finding which is based on true appreciation of documents and testimony of the witnesses. No question of law, much less substantial, has been raised before me which may warrant interference. Hence, the present appeal is dismissed. [Kanwaljit Singh Ahluwalia] July 13, 2011. Judge kadyan