IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4131 of 2009 (O.&M.) Date of Decision: 25.1.2010 Ram Kumar Sharma. ....... Appellant. Versus General Public and another. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Arun Singal, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.12558-C of 2009 The application is allowed as prayed for. R.S.A.No.4131 of 2009 This Regular Second Appeal is directed against judgments and decrees dated 13.8.2008 and 10.4.2009 passed respectively by the Additional Civil Judge (Senior Division), Panipat (hereinafter described as `the trial Court') and the Additional District Judge, Panipat (referred to hereinafter as `the first appellate Court') whereby the suit and the appeal of the plaintiff-appellant have been dismissed. R.S.A. No.4131 of 2009 (O.&M.) -2- .... The appellant had filed a suit for declaration pleading that he and respondent no.2 were entitled to the land belonging to Radhey Shyam, who was their real brother, in equal shares. The appellant and respondent no.2 are also brothers. It was pleaded that Radhey Shyam, who was in cultivating possession of the suit land went missing with effect from 5.8.1997 and a Daily Dairy Report was duly got recorded by the appellant in that regard and since he was not heard of for the last seven years, he should be presumed to be dead and his property should be declared to have devolved upon the appellant and respondent no.2 in equal shares. Upon notice, respondent no.2 appeared and resisted the claim of the appellant. He raised preliminary objections of maintainability, locus standi and cause of action etc. It was averred that Radhey Shyam was not missing and he was alive. It was further averred that after the day of disappearance, Radhey Shyam had come back in the village and took Rs.24,000/- as batai from him. He pleaded that Radhey Shyam had gone to Haridwar and is living as hermit. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for the relief of declaration, as prayed for?OPP 2. Whether the suit of plaintiff is not maintainable in the present form?OPD 3. Whether the plaintiff has no locus standi to file the present suit?OPD R.S.A. No.4131 of 2009 (O.&M.) -3- .... 4. Whether the plaintiff has no cause of action to file the present suit?OPD 5. Relief. Both the Courts below concluded that the appellant had not approached the Court with clean hands as there were as many as five brothers and sisters and the pleading that only three brothers were existing was not correct. The contention that Radhey Shyam was not heard of for the last seven years was also disbelieved and the suit as well as the appeal were dismissed by negating the pleas of the appellant in preference to the plea of respondent no.2 regarding giving of 2/3rd batai of the disputed land to Radhey Shyam. This has resulted in filing of the instant appeal wherein learned counsel for the appellant has contended that the findings recorded by the Courts below are erroneous, perverse and are liable to be set aside. It has been argued that there is overwhelming evidence on record that Radhey Shyam is missing since 1998 and a D.D.R. was lodged in that regard. He, thus, submitted that the impugned judgments be set aside. I have considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. The crucial fact which is to be determined in the instant appeal is as to whether Radhey Shaym had gone missing since 1997 so as to enable the appellant to claim share out of his estate. The appellant, who had approached the Court, was required to prove this fact, but, apart from his own bald statement, no other evidence was led by him except for producing R.S.A. No.4131 of 2009 (O.&M.) -4- .... Zile Singh, who has supported his case. Zile Singh is another brother of the appellant and he was allegedly given in adoption thereby having no claim to the estate of Radhey Shaym. In my opinion, this fact should have independently been established by the appellant and merely because one of the brothers had supported the appellant's assertion, the impugned judgments cannot be interfered with. In the absence of any material and independent evidence to establish the disappearance of Radhey Shaym from the village and his being unheard of for the last seven years, the Courts below could not have recorded any other finding except the one which has been mentioned in the impugned judgments. In this view of the matter, the findings of the Courts below cannot be termed to be erroneous so as to warrant any interference in this appeal. No question of law, much less a substantial question of law, has been shown to have arisen for consideration of this Court. Accordingly, the instant appeal is dismissed being devoid of any merit. January 25,2010 ( Mahesh Grover ) “SCM” Judge