RSA No.3966 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3966 of 2009 Date of decision : 28-09-2010 Dharambir alias Banti ....Appellant VERSUS Mahabir and others ....Respondents CORAM:- HON'BLE MR. JUSTICE L.N. MITTAL Present: Mr. J.S. Yadav, Advocate, for the appellant. L.N. MITTAL, J. (Oral) This is second appeal by plaintiff Dharambir alias Banti who has been unsuccessful in both the Courts below. Plaintiff's case is that he and his brother Braham Parkash (since deceased) became owners in possession of the two suit properties i.e. a house comprising Khasra No.327 and four shops situated in village abadi, vide judgment and decree dated 2.12.1994 in Civil Suit No.631 of 1994 suffered by their grand father Bhai Ram who died on 29.08.1996. The plaintiff was minor at that time and, therefore, mutation on the basis of said decree was not sanctioned. On the other hand, after death of Bhai Ram, his inheritance mutation was got sanctioned in favour of defendant Nos.1to 5 fraudulently and illegally. The plaintiff accordingly sought declaration that he is owner in possession of the suit properties and inheritance mutation No.989 of Bhai Ram in favour of defendants is null and void. The plaintiff also RSA No.3966 of 2009 -2- claimed permanent injunction restraining the defendants from alienating the suit properties in any manner. Direction to defendant No.1 was also claimed to render the account of rent of suit properties received by him. During the pendency of the suit, suit property was alienated vide sale deeds dated 18.01.2000, 4.09.2000 and 1.09.2000 to defendant Nos.6, 7, 11 and 12. The said sale deeds have also been challenged in the suit. Defendant Nos.1, 5 to 10, 11 and defendant No.12 filed separate written statements controverting the plaint allegations. Various pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon, vide judgment and decree dated 20.10.2008 dismissed the plaintiff's suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 30.01.2009. Feeling aggrieved, plaintiff has filed second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that vide decree dated 2.12.1994, the plaintiff and his brother Braham Parkash were declared owners in possession of the suit properties but mutation on the basis of said decree was not sanctioned because they were minors. But in view of said decree, the plaintiff is owner in possession of the suit properties. The contention cannot be accepted for various reasons. Firstly, plaintiff alone was not declared owner in possession of the suit properties vide decree dated 2.12.1994. Secondly, suit property RSA No.3966 of 2009 -3- bearing Khasra No.327 was not subject matter of judgment and decree dated 2.12.1994. Khasra No.327 was not mentioned in the said judgment and decree dated 2.12.1994 or even in the plaint of that suit. Thirdly, there is no demarcation report to depict that the house regarding which decree dated 2.12.1994 was passed falls in Khasra No.327. Fourthly, the plaintiff had no pre-existing right in the suit properties and in the absence of decree dated 2.12.1994 being registered one, the plaintiff could not acquire title to the suit properties. Fifthly, the plaintiff is admittedly not in possession of the suit properties. Consequently, suit for declaration and injunction only is not maintainable. For the reasons aforesaid, it is manifest that the plaintiff has been rightly non-suited by the Courts below. Judgments and decrees of the Courts below do not warrant interference in second appeal. There is concurrent finding by the Courts below against the plaintiff- appellant. The said finding is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is thus without any merit and is, accordingly, dismissed in limine. (L.N. MITTAL) JUDGE 28-09-2010 manju