REGULAR SECOND APPEAL No.2642 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2642 of 2010 DATE OF DECISION: FEBRUARY 8, 2011 Hazari .... Appellant Versus Munshi Ram .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. A. N. Saini, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Defendant Hazari having failed in both the courts below has filed instant second appeal. Respondent-plaintiff Munshi Ram, who is father of the defendant- appellant, was forced to file suit against the appellant. The plaintiff alleged that he is owner of the suit land measuring 8 marlas comprised of Khasra No.129. Defendant is residing separately from the plaintiff for the last 45 years. Defendant is owner of one plot and also one residential house in the village. The defendant has no right, title or interest in the suit land. However, about fifteen days prior to the filing of the suit, the defendant in absence of the plaintiff encroached upon the suit land and raised construction over it. On demand, the defendant refused to accept the claim of the plaintiff. Accordingly, plaintiff filed suit for possession of the suit land. The defendant broadly denied the plaint allegations. It was denied that plaintiff is owner of the suit land. It was alleged that in family settlement between the parties and other brothers of defendant in February, REGULAR SECOND APPEAL No.2642 OF 2010 -2- 2006, the suit land fell in the share of defendant, whereas a house measuring 300 square yards fell to the share of defendant's brother Sube and similarly one house each fell to the shares of defendant's other brothers Mahabir and Tara. Thereafter defendant raised loan of Rs.25,000/- from the Government and constructed house in the suit land by spending Rs.1,50,000/-. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gohana vide judgment and decree dated 26.08.2009 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Sonepat vide judgment and decree dated 23.11.2009. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. From jamabandi Exhibit P-1, it is proved that plaintiff is owner in possession of the suit land. Defendant's claim based on family settlement also reveals that plaintiff was owner of the suit land. However, defendant has failed to prove the alleged family settlement under which the suit land was fell to the share of the defendant. Defendant's evidence in this regard has been found to be contradictory and unreliable. The defendant examined DW-4 Om Parkash and DW-5 Dalbir regarding alleged family settlement. However, Om Parkas DW-4 is cousin of defendant's wife, whereas Dalbir DW-5 is real brother of defendant's wife. They are thus interested witnesses. There is also contradiction in the statements of these witnesses as to when and where the alleged family settlement took place. There is also no writing with regard to the family settlement. Both the courts below have appreciated the evidence led by the parties and have come to concurrent finding against the defendant- REGULAR SECOND APPEAL No.2642 OF 2010 -3- appellant regarding alleged family settlement. The said finding is supported by cogent reasons and is not shown to be perverse or illegal so as to warrant interference in the second appeal. Learned counsel for the appellant contended that even the plaintiff has admitted the factum of family settlement. However, the plaintiff has stated that the family settlement took place regarding other land but not regarding the suit land. There is no cogent evidence to depict that in the alleged family settlement, the suit land fell to the share of the defendant-appellant. There is another aspect of the matter. If the claim of the appellant is accepted, then no property or land was given to the plaintiff-respondent in the alleged family settlement. This is totally unacceptable. The plaintiff-father could not be left high and dry without any property in so-called family settlement. This circumstance further belies defendant's version regarding the alleged family settlement. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Fate of the lis depends on finding of fact regarding alleged family settlement set up by the defendant, under which the suit land allegedly fell to the share of the defendant. However, lower appellate court is the final court of fact. Consequently, in the absence of any question of law, the aforesaid finding of fact cannot be interfered with in second appeal. It is also not shown that there has been misreading or mis-appreciation of evidence by the lower courts. As a necessary upshot of the discussion aforesaid, I find no merit in the instant second appeal, which is accordingly, dismissed in limine. (L. N. MITTAL) JUDGE 8th February, 2011 'raj'