R.S.A. No. 1374 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1374 of 2006 Date of Decision : 20.4.2009 Lal Chand ....Appellant Versus Hav.Rohtash Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Vinod S.Bhardwaj, Advocate for the appellant. Mr.P.R.Yadav, Advocate for the respondents ... MAHESH GROVER, J. This is defendant's second appeal directed against the judgment of the first Appellate Court dated 27.2.2006. The plaintiff/respondent No.1 filed a suit for declaration to the effect that he has become owner in possession of the disputed property and that the appellant and respondent No.2 be restrained from interfering in his peaceful possession. It was pleaded that the suit property belonged to Shimbu Dayal who suffered a consent decree on 26.5.1995 by way of Civil Suit No.289 of 1995. It was further pleaded that the appellant and respondent No.2 in collusion with the revenue authorities had got mutated the entries in their R.S.A. No. 1374 of 2006 -2- favour regarding this property illegally and the same were not binding on his rights and that mutation No.581 be declared as null and void. The appellant, who was defendant No.2 in the trial Court, contested the suit and denied the averments of the plaintiff/respondent No.1. He denied that he was owner in possession of the suit land and pleaded that on the basis of mutation No.581 dated 15.7.1998 the appellant and respondent No.2 had become the owner of the property and that the mutation had been rightly sanctioned. The parties went to trial on the following issues :- 1. Whether the plaintiff is owner in possession of the suit property as alleged?OPP 2. Whether the plaintiff is entitled to the relief as prayed for?OPP 3. Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPD 4. Whether the plaintiff has no cause of action?OPD 5. Whether the suit is time barred?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Relief. The trial Court decreed the suit in toto. It upheld the validity of the decree in favour of the plaintiff/respondent No.1, declared him to be owner in possession of the suit land and granted him the injunction as prayed for. In appeal, the learned first Appellate Court affirmed the findings on the issue of validity of the decree and conferring of the R.S.A. No. 1374 of 2006 -3- ownership upon the respondent No.1, but concluded that by virtue of the decree the plaintiff/respondent No.1 had become the owner in possession of the suit property along with the appellant as a co-sharer and in the absence of any partition of the land and his status being that of a co-sharer he was not entitled to injunction. With this modification the learned first Appellate Court disposed of the appeal which has resulted in the present regular second appeal. It is the contended case of the learned counsel for the appellant that the findings recorded by the first Appellate Court are erroneous. It is contended before this Court that the first Appellate Court has wrongly inferred that there was a partition between Shimbu Dayal and the appellant and their third brother Tara Chand, whereas there was no evidence to this effect. It was thus pleaded that Shimbu Dayal without getting the land partitioned could not have alienated the same in favour of respondent No.1. It was pleaded that the decree was a result of fraud and misrepresentation. On the other hand, learned counsel for the respondent pleaded that the findings recorded by the first Appellate Court are perfectly correct, as it had upheld the decree passed in Civil Suit No.289 of 1995 suffered by Shimbu Dayal in his favour. It was pleaded that there is evidence on record to suggest that deceased Shimbu Dayal who suffered the decree in his favour was also living with him. It was only on account of love and affection that he had alienated his share in his favour and that in any eventuality the mutation which was existing in favour of the appellant was without any basis and, therefore, was not binding on his rights. R.S.A. No. 1374 of 2006 -4- I have heard the learned counsel for the parties and have perused the impugned judgment. The estate of Shimbu Dayal deceased, which is in question, is said to have come to the share of the plaintiff/respondent No.1 by virtue of civil Court decree dated 26.5.1995 passed in Civil Suit No.289 of 1995. The decree was to the knowledge of the appellant and respondent No.2 who never questioned it. Even in the instant suit he never set up any plea regarding the same having been suffered on account of misrepresentation and fraud. In this view of the matter, both the Courts have determined this issue that the decree was validly suffered by Shimbu Dayal in favour of the plaintiff/respondent No.1. In the absence of any pleadings of fraud and also in the absence of any other material to show that the decree was bad in law, the findings recorded by the Courts below can hardly be termed to be erroneous. That apart, the evidence on record shows that it was a consent decree by a co-sharer alienating his share to another co-sharer. It was not a collusive decree. In this view of the matter, the declaratory decree holding the plaintiff/respondent No.1 to be owner in possession of the suit property can neither be termed to be erroneous nor perverse so as to warrant any interference in a regular second appeal. The learned first Appellate Court was also right when it observed that in the absence of any further partition of the land the respondent No.1 had become co-sharer in the suit property and accordingly he was not entitled to injunction. Finding no infirmity in the impugned judgment, I am of the opinion that the appeal is totally devoid of any merit and deserves R.S.A. No. 1374 of 2006 -5- to be dismissed. Ordered accordingly. 20.4.2009 (MAHESH GROVER) JUDGE dss