IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3561 of 2007 (O&M) Date of decision: 21st November, 2008 Dilbagh Singh and others … Appellants Versus Parduman Singh and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sandeep Wadhawan, Advocate for the appellants. KANWALJIT SINGH AHLUWALIA, J. This is plaintiff’s second appeal. Mukhtar Singh and Dilbagh Singh, both brothers, had filed a suit against Parduman Singh and others for joint possession of half share of the land measuring 194 kanals 9 marlas, detailed and described in the head note of the plaint. The present appeal has been filed by the legal representatives of Mukhtar Singh. It was averred in the plaint that Mukhtar Singh and Dilbagh Singh are owners to the extent of ½ share of the joint land. The entire land comprised of 194 kanals and 9 marlas. It was stated that ¼ share was owned by third brother Kartar Singh and another ¼ share was owned by defendants No.15 to 18. It was stated in the plaint that third brother Kartar Singh has expired and is being represented by his legal representatives, defendants No.1 to 14. It was stated that the entire Khata of the land was joint. No partition had taken place. Whereas, defendants were asserting that partition had taken place and it is alleged by the defendants that the agreement of partition was executed on 9th April, 1996 and the same was incorporated in jamabandi for the year 1996-97. It was Regular Second Appeal No.3561 of 2007 (O&M) further averred that plaintiff had never executed any agreement of partition dated 9th April, 1996 and they never caused appearance before the revenue authorities for sanction of the mutation on the basis of agreement of partition. Defendants No.1 to 3, 6 to 8, 10 and 14 appeared, filed a joint written statement, took a preliminary objection that the suit is barred by limitation. It was not properly valued for the purposes of Court fee and jurisdiction. It was stated that plaintiffs are not joint owners of the Khata as partition agreed between the parties was reduced into writing on 9th April, 1996 and on the basis of same, mutation was sanctioned on 6th September, 1996. Another written statement was filed jointly by defendants No.4 and 5. It was stated therein that mutation dated 6th September, 1996 has become final. No appeal was filed against the same. Replication was filed, in which averments made in the written statement were denied and that of the suit were reiterated. The trial Court relied upon the admissions made by Mukhtar Singh plaintiff in his cross examination. He stated that he is cultivating his share, therefore, trial Court inferred that the partition, in fact, had taken place. PW Mukhtar Singh plaintiff further admitted that a domestic partition had taken place between the parties, but the same was not pakka (final). Trial Court further relied upon the testimony of DW-1 Amrik Singh and DW-2 Bhajan Kaur to hold that family partition reduced into writing (Ex. D-1) dated 9th April, 1996 had been acted upon by the parties and a mutation to this effect had also been granted. Aggrieved against the same, an appeal was filed. The appellate Court held as under: “Writing Ex.D-1 makes it crystal clear that it was signed/ thumb marked by both the parties including both appellants. Ex.D2 mutation was sanctioned in the presence of both appellants and other party, by the Revenue Authorities.” 2 Regular Second Appeal No.3561 of 2007 (O&M) The plea raised by the appellant plaintiff that Ex.D-1 was a forged and fabricated document, was not accepted, as no expert witness was examined. The lower appellate Court further held that mutation on the basis of Ex.D-1 was never challenged before any authorities. I have heard Mr.Sandeep Wadhawan, appearing for the appellants. He has stated that no reliance can be placed on the family partition (Ex.D-1). Even though writing contain thumb impressions of the plaintiffs, the same was a procured forged and fabricated document. On the observations made by a Court that evidence has been appreciated and re-appreciation and re-appraisal of the evidence is not open in a Regular Second Appeal, counsel has failed to given any satisfactory answer. In the present case, two courts below have given concurrent finding that family partition (Ex.D-1) was executed between the parties and on the basis of the same, mutation was sanctioned, therefore, there is nothing in the arsenal of counsel for the appellants to dislodge this concurrent finding of fact. No substantial question of law arises in the present appeal hence the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 21, 2008 rps 3