RSA No.2305 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2305 of 2009 Date of Decision: 09.02.2010 Anil and another .……Appellants Versus Dhanraj and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Anil Malik, Advocate for the appellants. L. N. MITTAL, J (ORAL) This is second appeal by plaintiffs, who have remained unsuccessful in both the Courts below. Plaintiffs filed suit seeking declaration that judgment and decree dated 11.02.2001 in suit No.494 of 1994 titled as ‘Dhanraj versus Mukhiya etc.’ passed by the trial Court and judgment dated 07.08.2001 passed in Civil Appeal No.23 of 2001 titled as ‘ Mukhiya Ram etc. versus Dhanraj etc’ against judgment and decree dated 12.02.2001 of the trial Court in the previous suit regarding the suit land are against law and facts and not binding on the plaintiffs who were not party to the said suit. The plaintiffs also claimed for permanent injunction restraining the defendants from forcibly and illegally dispossessing the plaintiffs from the suit land. Plaintiffs pleaded that the suit land measuring 6 marlas bearing Gair Mumkin plot No.750 came to the share of defendant No.2 Mukhiya alias Bhikhu in a family partition and he gave it to Rugha, father of plaintiff RSA No.2305 of 2009 -2- No.1 and husband of plaintiff No.2. The plaintiffs are owners in possession of the said plot and have constructed their house thereon. However, defendant No.1 filed suit against defendant No.2 and Rugha and other persons. Rugha died during pendency of the suit, but inspite of application moved by plaintiffs herein, they were not impleaded as party to the previous suit. On the other hand, Parksho was joined as party to that suit as widow of Rugha. Judgment and decree passed in the said previous suit including appeal are illegal and null and void. The defendants threatened to take possession of the suit land from the plaintiffs. Hence the suit. Defendant No.1 contested the suit and controverted the plaint allegations. It was pleaded that neither Rugha had any concern with the suit property nor plaintiffs have any concern therewith. So the question of taking possession of the suit property from the plaintiffs does not arise. Various other pleas were also raised. Defendant Nos.2 to 4 were proceeded ex parte. Learned Civil Judge (Junior Division), Narwana vide judgment and decree dated 15.12.2005 dismissed the suit of the plaintiffs. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Jind vide judgment and decree dated 31.03.2008. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the appellants and perused the case file. To prove their case, Om Pati plaintiff No.2 appeared as PW-1. Defendant No.2 Bhikhu alias Mukhiya was also examined as PW-2. Both of them broadly supported the plaintiffs’ case. However, RSA No.2305 of 2009 -3- except this oral evidence, no other evidence has been led by the plaintiffs to establish that they are either owners or in possession of the suit property. The aforesaid oral evidence is not sufficient to prove ownership or possession of the plaintiffs over the suit property. Learned counsel for the appellants repeatedly and vehemently contended that Bhikhu alias Mukhiya defendant No.2, who is admittedly cosharer in the suit property has admitted the possession of the plaintiffs over the suit property. However, this contention is of no help to the appellants because the said admission of defendant No.2 has no adverse bearing against contesting defendant No.1. In fact defendant No.1 had filed previous suit against defendant No.2 and others. The said suit was decreed. The appeal filed by defendant No.2 herein in the said previous suit was also dismissed. Thus defendant No.2 intentionally supported the case of the plaintiffs herein to harm the interest of contesting defendant No.1. Mere admission of defendant No.2 is not sufficient to prove the case of the plaintiffs. Moreover, defendant No.2 himself is not proved to have been in exclusive possession of the suit property and, therefore, defendant No.2 could not have given possession thereof to plaintiffs' predecessor Rugha or to the plaintiffs. Except self-serving oral statements of plaintiff NO.2 and defendant No.2 that in oral family partition, the suit property fell to the share of defendant No.2, there is no other evidence to prove the alleged family partition or to prove that the suit property fell to the share of defendant No.2 or that defendant No.2 came in an exclusive possession thereof. There is concurrent finding of fact by both the Courts RSA No.2305 of 2009 -4- below that the plaintiffs are not proved to be owners or in possession of the suit property. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal in any manner. No question of law much less substantial question of law arises for determination in the instant second appeal. I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 09.02.2010 A. Kaundal