IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.980 of 2011 (O&M) Date of decision: 21st July, 2011 Anant Parkash … Appellant Versus Gopal Krishan Rajpal and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Arun Singal, Advocate for the appellant. KANWALJIT SINGH AHLUWALIA, J. Anant Parkash, present appellant had instituted a suit for separate possession by way of partition and for rendition of account regarding the property, i.e. House No.475-A&B and House No.485-R situated in Ward No.6, Panipat. The suit was dismissed by the Court of Civil Judge (Senior Division), Panipat on 11th August, 2010. The appeal filed by the appellant-plaintiff for setting aside the judgment and decree of the trial Court was also dismissed by the Court of Additional District Judge, Panipat. Hence, having lost in both the forums below, present regular second appeal has been filed by plaintiff to the suit. In the suit it was pleaded that Bosha Ram, father of the appellant-plaintiff, was owner in possession of the property in dispute and thus, the appellant-plaintiff and respondents-defendants were joint owners of the same. The plaintiff had got 7/12th share, whereas the defendants had 5/12th share in the property in dispute. The suit property was joint and the plaintiff’s share in the property was to the extent of Regular Second Appeal No.980 of 2011 (O&M) 7/12th share by virtue of two Wills, one executed by Bosha Ram on 12th February, 1976 and the other by Ganeshi Bai, mother of the plaintiff, on 28th November, 1966. It was prayed in the suit that since the plaintiff was not getting any benefit from the property in dispute, therefore, the same was required to be partitioned for metes and bounds. After the notice was served upon the defendants, they caused appearance and filed written statement, in which many preliminary objections were raised regarding the maintainability, locus- standi, cause of action of filing the suit and furthermore, that the suit was bad for nonjoinder/misjoinder of the necessary parties. On merits, it was submitted that Bosha Ram was not in exclusive possession of the suit property, rather Ganeshi Bai was also a co-sharer. It was pleaded that due to a family settlement, the suit property came to the share of Ishwar Dass, father of the answering defendants and thus, the plaintiff had no concern with the suit property. It was further stated that the plaintiff had taken the amount when he was posted as a Government employee at Delhi. He was also involved in the trade of buffalos and the defendants had provided buffalos to him from some other dairy in Gharaunda, payment whereof was yet to be made to the answering defendants. After conclusion of the pleadings, the trial Court had drawn the issues and the parties led their evidence. The Court held that the plaintiff’s whole evidence consisted of the only statement made by plaintiff himself as PW-1. He had examined no other witness. The Wills executed by Bosha Ram on 12th February, 1976 and by Ganeshi Bai on 28th November, 1966 were not produced before the Court and even no application was filed by the plaintiff to prove the aforesaid two Wills by leading secondary evidence. No attesting witness to these Wills was 2 Regular Second Appeal No.980 of 2011 (O&M) examined. Photostat copies of the Wills were produced as Mark ‘B’ and ‘C’, therefore, the trial Court ignored these two documents. After ignoring these documents, the trial Court held that there was absolutely no evidence on the file to hold that the plaintiff had become joint owner in possession of the disputed property by virtue of the Wills dated 12th February, 1976 and 28th November, 1966. The trial Court further held that no evidence was led to determine the share of the plaintiff in the property. The Court further held that the other brothers and sisters were not made party to the suit by the plaintiff. Thus, the suit was held to be bad for mis- joinder or non-joinder of the necessary parties. The above said findings given by the trial Court have been affirmed by the lower appellate Court. It held that no evidence has been led by the plaintiff to prove his share in the suit property. Mr. Arun Singal, Advocate appearing on behalf of the appellant-plaintiff, has stated that respondent No.1 while appearing as DW-2 in his cross-examination admitted that 35 square yards of the disputed land out of the total 90 square yards belong to the plaintiff. Mr.Singal has further stated that it was wrong on the part of the defendants to say that the appellant-plaintiff had not participated in the family affairs and in the marriage of his sister. However, on an observation made by the Court as to how the Wills dated 12th February, 1976 and 28th November, 1966 have been proved by the appellant- plaintiff, learned counsel has failed to advance any meaningful argument. Both of these Wills have been tendered as Mark ‘B’ and ‘C’. No attesting witness to the Wills has been examined. It has also come in evidence that marriage of the sister was performed. The sister has not been made party to the suit. Having failed to prove execution of both the Wills, it was 3 Regular Second Appeal No.980 of 2011 (O&M) necessary that all brothers and sisters should have been made party to the suit. Thus, the findings returned by both the courts below suffer from no infirmity and hence, no interference is warranted in the same, especially when counsel for the appellant has failed to convince this Court that any question of law, much less a substantial one, arises for consideration of this Court. Dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 21, 2011 rps 4