RSA No.3918 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3918 of 2009 Date of Decision: 23.07.2010. Niranjan Kaur and others .……Appellants Versus Kapoor Singh ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sarbjit Singh, Advocate for the appellants. L. N. MITTAL, J (ORAL) Defendants having remained unsuccessful in both the Courts below have filed the instant second appeal. Plaintiff-respondent Kapoor Singh filed suit against appellants for separate possession of half share by partition of suit land measuring 2 kanals alleging the same to be joint properties of the parties in which the plaintiff has half share and defendants also have half share. The plaintiff also sought permanent injunction restraining the defendants from raising any construction in the suit land and from changing nature thereof. The defendants controverted the plaintiff's plea and pleaded that defendants purchased the suit land vide sale deed dated 05.08.1971 and agreement to sell dated 04.05.1975 and have constructed houses there and are owners in possession of the entire suit property. Learned Additional Civil Judge (Senior Division), Baba Bakala vide judgment and decree dated 19.03.2008 decreed the plaintiff's suit for possession by partition by mets and bounds upto RSA No.3918 of 2009 -2- half share of the suit land in favour of the plaintiff. Injunction restraining defendants from raising any construction and from changing nature of the suit property was also granted. First appeal preferred by the defendants has been dismissed by learned District Judge, Amritsar vide judgment and decree dated 03.03.2009, clarifying, however, that the decree passed by the trial Court shall be deemed to be preliminary decree for partition. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. It is in evidence of both the parties that plaintiff sold 1 kanal land out of 2 kanals land in suit to Tara Singh (predecessor of defendants) vide sale deed dated 05.08.1971. Consequently, defendants are owners of the suit land to the extent of half share. Even the plaintiff claimed only remaining half share in the suit land. However, the dispute is regarding the said remaining half share which is claimed by the plaintiff. Defendants claimed to have purchased the same vide agreement dated 04.05.1975. However, merely by agreement, the defendants could not have become owners of half share of the suit land, in the absence of any registered sale deed. In addition thereto, even alleged agreement dated 04.05.1975 has not been produced in evidence. On the other hand, translation of same writing dated 04.05.1997 has been produced in evidence. However, even the said writing has not been proved to have been executed by plaintiff or by anybody else. It is thus manifest that defendants are owners of only half share of the suit land and plaintiff is owner of the remaining half share. RSA No.3918 of 2009 -3- Learned counsel for the appellants contended that defendants purchased the remaining half share in the suit land also vide agreement dated 04.05.1975. The contention cannot be accepted. As already noticed hereinabove, alleged agreement dated 04.05.1975 has not seen the light of the day. Even writing dated 04.05.1997 has not been proved. Moreover, without registered sale deed, ownership of half share of the suit land could not be transferred to defendants or their predecessor. According to revenue record, plaintiff is owner of half share of the suit land. Even the defendants by pleading that they purchased the said half share vide agreement dated 04.05.1975, have admitted that plaintiff is owner of the said half share because sale of said half share vide agreement dated 04.05.1975 in favour of defendants is not proved. There is thus no merit in the contention raised on behalf of the appellants. There is concurrent finding of fact by both the Courts below in favour of the plaintiff-respondent. The said finding is based on proper appreciation of evidence and is not vitiated in any manner. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence warranting interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely devoid of any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 23.07.2010. A. Kaundal