R. S. A. No. 1813 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1813 of 2011 Date of Decision : April 26, 2011 Jagdev Katoch .... Appellant Vs. Balkar Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Shailendra Sharma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Jagdev Katoch, who was successful in the trial court, but has been non-suited by the lower appellate court, has filed the instant second appeal. Plaintiff's case is that the suit land was ancestral coparcenary property in the hands of plaintiff's father Durga Chand – defendant no.1, and therefore, plaintiff had pre-existing right therein to the extent of half share, but defendant no.1 has sold 16 kanals land out of the suit land to defendants no.2 to 5 without legal necessity. The said sale has also been challenged in the suit. Defendant no.1 broadly denied the plaint allegations. R. S. A. No. 1813 of 2011 2 Defendants no.2 to 5 contested the suit and denied the plaint allegations. They pleaded that they purchased 16 kanals land from defendant no.1 for consideration of Rs.60,000/-. The same was for legal necessity. The sale deed was executed pursuant to decree for specific performance of the agreement to sell passed by the Court. Various other pleas were also raised. Learned Civil Judge (Junior Division), Dasuya, vide judgment and decree dated 12.08.2005, decreed the plaintiff's suit. However, first appeal preferred by defendants no.2 to 5 has been allowed by learned District Judge, Hoshiarpur, vide judgment and decree dated 21.09.2010 and thereby, suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Whole case of the plaintiff-appellant is based on the plea that suit property was ancestral coparcenary property in the hands of his father Durga Chand – defendant no.1 son of Vijay Singh. However, plaintiff has miserably failed to substantiate his said plea. In this regard, paragraph 10 of the judgment of the lower appellate court is reproduced hereunder :- “10. The main point for determination involved in the present appeal is whether the suit land was ancestral coparcenary property in the hands of defendant no.1 Durga Chand R. S. A. No. 1813 of 2011 3 son of Captain Vijay Singh. PW3 Jagdev Katoch plaintiff in his cross-examination has admitted that the name of his grand father was Vijay Singh and Nihato Devi was his grand mother. It is further in his cross- examination that it is correct that Vijay Singh bequeathed all his land in favour of Nihato Devi and disputed land is the same. It is further in his cross-examination that mutation regarding the entire land of Vijay Singh was sanctioned in favour of Smt. Nihato Devi. It is further in his cross- examination that Nihato Devi executed Will in favour of her three sons, namely, Durga Chand, Maheshwar Chand and Bhagwan Chand. Ex.P2 is copy of jamabandi for the year 1995-96 in respect of the suit land and in this Jamabandi Smt. Nihato Devi is recorded as owner of the suit land. So, from the entries contained in this Jamabandi and from the admission of the plaintiff, stands proved that Smt. Nihato Devi was owner of the suit land. From the mutation notice given R. S. A. No. 1813 of 2011 4 on Jamabandi Ex.P2, it is evident that from the name of Nihato Devi, the property was mutated in favour of Durga Chand, Maheshwar Chand and Bhagwan Chand, her three sons. So, it means that the suit land came to defendant no.1 from his mother Smt. Nihato Devi. Any property inherited by a male Hindu from his mother or any female is to be treated as his self-acquired property and not ancestral coparcenary property.” In view of aforesaid factual position, plaintiff has been righty non-suited by the lower appellate court because suit property cannot be said to be ancestral or coparcenary property in the hands of defendant no.1. Faced with the aforesaid situation, learned counsel for the appellant contended that even settlement of the suit land by plaintiff's grand father Vijay Singh in favour of his wife Nihato Devi (plaintiff's grand mother) by way of Will would not effect the pre-existing right of defendant no.1 in the suit land and consequently, plaintiff also had pre-existing right therein. Reliance in support of this contention has been placed on a Division Bench judgment of Madras High Court in the case of Chandrasekaran vs. Palanisamy reported as 2004 (2) R.C.R. (Civil) 633. The contention is completely misconceived and devoid of substance. R. S. A. No. 1813 of 2011 5 The plaintiff-appellant could raise this contention if he had proved the suit property to be ancestral even in the hands of Vijay Singh himself. However, there is not even an iota of evidence to depict the same. On the contrary, learned counsel for the appellant himself submitted that suit land was allotted to plaintiff's grand father Vijay Singh by Rehabilitation Department in lieu of land left in Pakistan. However, admittedly, there is no evidence to depict that the land left by Vijay Singh in Pakistan was ancestral or joint Hindu family property in his hands. Consequently, the suit land was also not ancestral or joint Hindu family property in the hands of Vijay Singh. As a necessary corollary, plaintiff's father Durga Chand had no pre-existing in the suit land and therefore, plaintiff also has no pre-existing right in the suit land. For the reasons aforesaid, I find no merit in the instant second appeal. Finding recorded by the lower appellate court is fully justified by the plaintiff's own admissions and therefore, the said finding cannot be interfered with in any manner, much less in exercise of limited second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. April 26, 2011 ( L. N. MITTAL ) monika JUDGE