R.S.A. No. 1902 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1902 of 2008 (O&M) Date of decision: 19.03.2009 Dariya Singh ....Appellant Versus Vijay Kumar alias Vijay Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Dr. Parveen Hans, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 23.2.2005 and 21.12.2007 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for declaration and permanent injunction claiming himself to be the owner in possession of 1/18th share of the land in view of the inheritence from Puran S/o Jai Kishan, and also to challenge the judgment and decree dated 30.8.1991 suffered by Puran, stands dismissed. The plaintiff/appellant claimed that Puran the registered owner of the property died issueless and the plaintiff/appellant being one of the legal heirs was entitled to inherit the property. He also challenged the adoption deed set up by Vijay Kumar as also the decree, to be outcome of fraud and mis-representation. The suit was contested by the defendant wherein the R.S.A. No. 1902 of 2008 (O&M) -2- averments made in the plaint on merits were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff is owner-in-possession of the suit land on the grounds alleged? OPP 2. Whether the judgment and decree daed 30.8.1991 passed in civil suit No. 596 of 1991 is illegal, null and void and liable to be set aside? OPP 3. Whether the suit is not maintainable in the present form? OPD 3-A. Whether the adoption deed dated 1.6.1985 is illegal, null and void and not binding upon the rights of the plainitff? OPP 4. Relief.” The learned Courts below on the admitted position came to the conclusion that the suit filed by the plaintiff/appellant could not be said to be maintainable as he had no right of inheritence because one of the brothers and father of Puran were alive at the time of his death. The appellant being son of pre-deceased brother fell in Category 4 in the Schedule of Succession, whereas brother and father fell in Schedule Category 2, thus, had preference of inheritence. The learned Courts below have non-suited the appellant/plaintiff, and also held that there was no illegality and infirmity in the decree which was passed in consonance with law. In view of the upholding of the judgment and decree, it was held that the plaintiff had no legal status to claim declaration and injunction. The learned counsel appearing on behalf of the appellant contends that the property in dispute was ancestral in the hands of Puran and, therefore, he was not competent to bequeath the same by way of decree and, therefore, judgment and decree suffers from error apparent. R.S.A. No. 1902 of 2008 (O&M) -3- The learned counsel for the appellant contends that this appeal raises the following substantial questions of law: - “1. Whether the judgments and decree passed by the learned Courts below being outcome of misreading of Section 6 of the Hindu Succession Act could be sustained? 2. Whether the judgment and decree challenged was liable to be set aside in view of the ancestral nature of the property?” However, none of the substantial questions of law arises in the present case. It may be noticed that case set up by the plaintiff himself was that he was entitled to inheritence from Puran who was said to be owner in possession of the suit property, being his legal heir. No fault can be found with the finding recorded by the learned Courts below holding that the plaintiff has no right to inheritence. The plea that the property being ancestral cannot be raised in regular second appeal, as no such plea was raised or claimed before the learned Courts below nor any issue in this regard was framed. Even otherwise, the learned Courts have recorded a finding that the property in dispute was inherited from two sources, which could not be bifurcated and, thus, held to be self-acquired property and not ancestral. No merit. Dismissed. (Vinod K. Sharma) Judge March 19, 2009 R.S.