REGULAR SECOND APPEAL No.2910 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.2910 OF 2010 DATE OF DECISION: JANUARY 20, 2011 Banta Singh .... Appellant Versus Kulwant Singh and others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Manish Bansal, Advocate for Mr. Mukesh Kumar Bhatnagar, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.8694-C of 2010 Allowed as prayed for. CM No.8695-C of 2010 For reasons mentioned in the application, which is accompanied by the affidavit, delay of 62 days in filing of appeal is condoned. Main Case Plaintiff Banta Singh having remained unsuccessful in both the courts below has come in second appeal. Plaintiff's case is that Sajjan Singh was owner of 1/3rd share of the land described in the plaint. On his death, it was inherited by his two sons Harnam Singh and Sadhu Singh and one daughter Datto in equal shares i.e. 1/3rd share each. Accordingly, Datto inherited 1/9th share in the joint land. Datto was married with Mohan Singh and out of this wedlock, plaintiff was born. After death of Mohan Singh, Datto contracted second marriage with REGULAR SECOND APPEAL No.2910 of 2010 -2- Teja Singh. Out of this wedlock, defendant Nos.1 and 2 were born as son and daughter of Datto. Datto has since died on 15.03.1974, accordingly, plaintiff and defendant Nos.1 and 2 inherited 1/3rd share each out of the share of Datto. However, defendant Nos.1 and 2 got sanctioned inheritance mutation of Datto in their own favour without disclosing that plaintiff is also son of Datto. Accordingly, plaintiff filed suit seeking declaration that he along with defendant Nos.1 and 2 is entitled to inheritance of the estate of Smt. Datto to the extent of 1/3rd share each. Consequential relief was also sought. Defendants did not appear in spite of service and were proceeded ex parte. Plaintiff led his ex parte evidence. Learned Additional Civil Judge (Senior Division), Amritsar vide judgment and decree dated 29.04.2009, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has also been dismissed by Learned Additional District Judge, Amritsar vide judgment and decree dated 14.10.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that from unrebutted evidence of the plaintiff, he is proved to be son of Datto and, therefore, entitled to inherit 1/3rd share in her estate along with defendant Nos.1 and 2 who are son and daughter of Datto from her second husband Teja Singh. The contention cannot be accepted. Plaintiff has led only oral evidence to depict that he is son of Smt. Datto. However, there is no documentary evidence, whatsoever, to depict that Datto was ever married to plaintiff's father Mohan Singh or to depict that plaintiff is son of Smt. Datto. REGULAR SECOND APPEAL No.2910 of 2010 -3- Oral evidence of the plaintiff is not sufficient to prove this fact. If plaintiff had been son of Datto, the plaintiff would have produced some documentary evidence in this regard. It is also significant to notice that Smt. Datto died on 15.03.1974 and her inheritance mutation was sanctioned in favour of defendant Nos.1 and 2 on 30.11.1976. However, the instant suit was instituted on 29.08.2007 i.e. more than 33 years after the death of Datto and almost 31 years after sanction of mutation in favour of defendant Nos.1 and 2. If plaintiff had been son of Datto, plaintiff would not have remained silent for more than 33 years after her death. On the contrary, the plaintiff never remained in possession of the suit land. All these circumstances also depict that plaintiff is not son of Datto, because if he had been son of Datto, he would have asserted his right immediately after her death. Suit is also barred by limitation having been filed after 33 years of death of Datto. There is concurrent finding by both the courts below against the plaintiff-appellant. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. The plaintiff cannot succeed merely because the defendants were proceeded ex parte. The plaintiff has to prove his case even when defendants are ex parte. However, plaintiff has failed to do so. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of merit and is, accordingly, dismissed in limine. (L. N. MITTAL) JUDGE 20.01.2011 'raj'