IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1324 of 2005 Date of Decision : July 08, 2008 Lal Singh and another ....Appellants Versus Jai Parkash and another .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sameer Rathore, Advocate for the appellants. T.P.S. MANN, J. Suit for declaration and permanent injunction filed by the appellants and Smt. Savitri Devi was dismissed by the learned trial Court on 2.9.2004 and so also their appeal by learned first appellate Court on 12.1.2005. They have now preferred the present second appeal under Section 100 of the Code of Civil Procedure. The case of the appellants and Smt. Savitri Devi, as set up by them in the plaint, was that Duli Chand, who was owner and in possession of the suit property, died on 11.4.1993 leaving behind three sons, namely, Lal Singh, Budh Singh, the two appellants and Jai Parkash, respondent No.1 and three daughters, namely, Savitri Devi, Maya Devi and Vidhya Devi. All of them, thus, became owners in possession to the extent of 1/6th share each. However, the appellants and Smt. Savitri Devi perused the revenue Regular Second Appeal No. 1324 of 2005 -2- record and found out that Duli Chand had suffered a collusive decree in favour of his son Jai Parkash on 19.8.1992 under which he transferred the entire suit land in his favour on the basis of false and fictitious grounds like family settlement, etc. Said Jai Parkash sold 1 Kanal and 12 Marlas out of the suit land in favour of Vijay Singh vide registered sale-deed dated 25.11.1992. In fact, no family settlement had taken place between Duli Chand and his son Jai Parkash regarding the suit property, nor the appellants and Smt. Savitri Devi were party to the same despite the fact that they were also members of the family. Accordingly, the appellants and Smt. Savitri Devi filed suit for declaration that the judgment and decree dated 19.8.1992 and sale-deed dated 25.11.1992 be declared null and void and they be declared owners in possession to the extent of 1/6th share each in the suit property and the defendants be restrained from taking illegal and forcible possession of the suit land from them or alienating the same by transfer, gift, etc. to any person. Jai Parkash-respondent No. 1 opposed the suit and claimed that the judgment and decree in question were passed legally and validly in his favour by the Court. He denied the stand of the plaintiffs and claimed himself to be the absolute owner in possession of the suit land on the basis of the aforementioned judgment and decree. Similar stand was taken by Vijay Singh and Maya Devi-defendants. The primary reason for the dismissal of the suit was the Regular Second Appeal No. 1324 of 2005 -3- admission made by both the appellants on 31.7.1998 and 8.3.1999 to the effect that judgment and decree in question suffered by their father Duli Chand in favour of Jai Parkash on 19.8.1992 was true and correct and accordingly, they did not want to pursue their case and prayed for dismissal of the suit as withdrawn. These statements were made by the appellants after appearing in the Court with their counsel. The appellants tried to wriggle out of their admissions by alleging that they got recorded their statements in the Court under the impression that Jai Parkash would make compromise with them regarding the suit propery but he did not do so. This stand of theirs was nothing but an after-thought. They had made categorical statement before the Court whereby they accepted the correctness of the judgment and decree suffered by their father Duli Chand in favour of Jai Parkash. At the time of making their statements, neither of the appellants put any rider or made their statements subject to Jai Parkash making compromise with them regarding the suit property. They also did not make any application for withdrawal of their respective admissions. The judgment and decree challenged by the appellants was suffered by their father Duli Chand on 19.8.1992. On its basis mutation was sanctioned in favour of Jai Parkash on 4.2.1993. Duli Chand died on 11.4.1993. Still, the appellants filed the suit on 3.9.1997, i.e. after the expiry of the period of limitation. It is submitted on behalf of the appellants Regular Second Appeal No. 1324 of 2005 -4- that they came to know about the execution of the decree when they felt threatened at the hands of Jai Parkash, who took physical possession of the suit property. However, the appellants have not been able to establish that they ever remained in cultivating possession of the suit land with their father in their native village. They have been residing at a different place. Their father Duli Chand was also having litigations with some other persons. Under these circumstances, the appellants were supposed to have enquired about the title of the suit land at the time of death of their father. Moreover, the appellants filed suit for declaration with consequential relief of permanent injunction. Inspite of the fact that the appellants were not in possession of the suit property, they did not seek the relief of possession. Therefore, the suit filed by the appellants was not maintainable. The concurrent findings of facts arrived at by the learned Courts below are based on proper appreciation of the evidence. No illegality or infirmity could be pointed out or noticed in the same. These findings cannot be disturbed in a second appeal. The substantial questions of law, as claimed by the appellants, do not arise for consideration. The appeal is, therefore, dismissed. Regular Second Appeal No. 1324 of 2005 -5- ( T.P.S. MANN ) July 08, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO