R.S.A. No. 2677 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 7838-C of 2008 and R.S.A. No. 2677 of 2008 (O&M) Date of Decision: 5.5.2009 Thakur Singh ...Appellant. Versus Pargan Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Nakul Sharma, Advocate for the appellant. AJAY KUMAR MITTAL, J. Being unsuccessful before the courts below, the plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 11.12.2007 passed by the first appellate court, affirming that of the trial court dated 3.3.2006 whereby the suit of the plaintiff for declaration and permanent injunction was dismissed. Put succinctly, the facts of the case are that the plaintiff filed a suit for declaration to the effect that he was owner in possession of the land measuring 1 kanal 11 marlas situated within the area of village Chak Vendal, Tehsil Nakodar, District Jalandhar (hereinafter referred to as the “suit land”) as per jamabandi for the year 1994-95 by way of extinguishment of right of redemption and as a consequential relief, the plaintiff had sought a decree for permanent injunction R.S.A. No. 2677 of 2008 -2- restraining the defendants from alienating the suit land and interfering in the peaceful possession of the plaintiff. It was pleaded that one Pirtha son of Harnama was owner in cultivating possession of the land measuring 3 kanals comprised in khasra No. 2835 to the extent of ½ share while Santa and Deva sons of Ram Singh were co-owners of the said land to the extent of ½ share. Pirtha mortgaged with possession 3 kanals of land to Fatta son of Waryami for a sum of Rs.300/- vide registered deed of mortgage dated 7.12.1943 and handed over the possession thereof to him. Said Pirtha Singh died on 18.1.1948 and his estate was mutated in favour of Santa Singh and Deva Singh sons of Ram Singh and Sarban Singh and Wasakhi Singh sons of Sham Singh and as such they became mortgagors. Santa Singh deposited mortgage money of Rs.300/- with the District Competent Officer, Jalandhar and purchased the rights of mortgage to the extent of 3/4th share and got redeemed 1/4th share of land by paying the amount and, therefore, became owner of the said land vide order dated 28.11.1957 passed by the Competent Officer, Jalandhar. Mutation No. 2408 qua purchase of the mortgagees rights was also sanctioned in favour of Santa Singh to the extent of 3/4th share against Rs.225/- and 1/4th share against Rs.75/- and mutation No. 2398 was also sanctioned in his favour. It was further pleaded that during the course of consolidation of holdings, khasra No. 2835 qua 3/4th share of Santa Singh changed to khasra No. 64/10/3 (1-11) and the entries in that regard were made in the revenue records. After the death of Santa Singh, his estate was mutated in favour of the plaintiff in view of the registered Will dated 18.8.1975 and he became mortgagee of the land in the manner in which R.S.A. No. 2677 of 2008 -3- Santa Singh was holding those rights. Sarban Singh son of Sham Singh died issueless on 12.9.1975 and on the basis of his registered Will dated 18.8.1975, the plaintiff had also become owner of the estate of Sarban. On the death of Deva son of Ram Singh, who died unmarried on 10.4.1977, his property was also inherited by the plaintiff on the basis of natural succession. According to the plaintiff, Wasakhi son of Sham adopted Pargan Singh as his son, who had become owner of the property of said Wasakhi in terms of the judgment and decree dated 6.6.1987. Defendants No.2 and 3 had purchased the suit land along with all encumbrances including the mortgage but failed to get the same redeemed within the statutory period of 30 years from the date of creation of mortgage with delivery of possession and as such rights of redemption of the mortgage had extinguished. Defendants No.2 and 3 started threatening to interfere in the possession of the plaintiff over the suit land and to alienate the same which gave rise to the filing of the suit, as mentioned above. The suit was contested by defendants No.2 and 3 by filing written statement and raising various preliminary objections therein. It was pleaded that the plaintiff had sold the suit land vide registered sale deed dated 16.2.1990 for a consideration of Rs.5000/- representing the answering defendants and their father that he was owner of the suit land along with share in 5 H.P. electric motor, rooms and trees standing overthere and was bound by it. The possession of the suit land was handed over to the answering defendants. It was further pleaded that the plaintiff having become owner of the suit land could no longer raise the plea of loss of right of redemption of the same. The R.S.A. No. 2677 of 2008 -4- other averments made in the plaint were denied and a prayer for dismissal of the suit was made. Defendant No.1, however, appeared but did not file any written statement to contest the suit and was proceeded against ex parte as subsequently none appeared on his behalf. On the pleadings of the parties, the trial court framed various issues and on appreciation of the oral as well as the documentary evidence led by the parties held that the plaintiff had failed to prove the execution of the Wills dated 18.8.1975 by Santa Singh and Sarban in his favour but sanctioning of mutations of inheritance in his favour in respect of the land owned by Santa Singh and Sarban had been established. The trial court further held that defendants No.2 and 3 had acquired absolute rights of ownership and possession for the suit land on the basis of sale deed dated 16.2.1990 executed by the plaintiff for valuable consideration. It was also held that the suit for declaration was neither within limitation nor maintainable and the plaintiff was estopped by his own act and conduct from filing the suit. Accordingly, the trial court vide judgment and decree dated 3.3.2006 dismissed the suit. Feeling aggrieved, the plaintiff took the matter in appeal and the lower appellate court vide judgment and decree dated 11.12.2007 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellant. Both the courts on appreciation of the evidence available on record had come to the conclusion that though the plaintiff had succeeded to the estate of Santa and Sarban but failed to prove the R.S.A. No. 2677 of 2008 -5- respective Wills allegedly executed by them. The courts below have recorded a concurrent finding of fact that the plaintiff having himself sold the suit land to defendants No.2 and 3 vide sale deed, Ex.D1, was, therefore, left with no right legal or moral to assert himself to be the owner of the suit land or to protect his possession against his vendees, i.e. defendants No.2 and 3. In the wake of the aforesaid findings, the learned counsel for the appellant was unable to point out any substantial question of law to be arising in this appeal. No illegality or perversity could be found in the findings recorded by the trial court and affirmed by the lower appellate court. Further, no misreading or misappreciation of any evidence available on record has been shown by the learned counsel for the appellant warranting interference by this court in the regular second appeal. No question of law, much less a substantial question of law arises in this appeal. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. The appeal is time barred by 76 days. An application bearing C.M. No. 7838-C of 2008 has been moved by the appellant for condonation of 76 days' delay in filing the appeal. Since the appeal has been dismissed on merits, no separate order is being passed in the application for condonation of 76 days' delay in filing the appeal and the same is disposed of as such. May 5, 2009 (AJAY KUMAR MITTAL) gbs JUDGE