R.S.A. No. 2087 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2087 of 2009 (O&M) Date of Decision : 20.5.2009 Attar Singh & others .......... Appellants Versus Dalip Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.K. Sharma, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 6198-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 119 days in filing the appeal. It has been averred in the application that the delay has occurred as the appellants could not contact their counsel due to his appointment as a Law Officer. It has further been pleaded, that it was only after their counsel visited at Rohtak, that the papers could be collected, in this process the delay of 119 days has occurred in filing the appeal. It is stated that delay is, therefore, for the reasons beyond control of the defendant / appellants and, thus, bona fide. R.S.A. No. 2087 of 2009 2 This application is allowed, delay of 119 days in filing the appeal is condoned. R.S.A. No. 2087 of 2009 & C.M. No. 6199-C of 2009 This regular second appeal is directed against the judgment and decree dated 30.9.2008, passed by the learned lower appellate Court vide which suit filed by the plaintiff / respondent stands decreed. The plaintiff / respondent filed a suit for declaration claiming himself to be owner of 1/3rd share along with the other co-sharers by way of inheritance of Phooli their father. The undisputed facts are that the land in dispute was ancestral coparcenary property in the hands of Phooli and on his death the defendant / appellants got mutation sanctioned in their favour by way of inheritance. The mutation was challenged to be against law in view of the fact that the plaintiff and defendant No.1 being co-parcener had 2/3rd share in the property and Phooli had only 1/3rd share in undivided coparcenary property. The learned trial Court dismissed the suit, however, the learned lower appellate Court has been pleased to allow the same, keeping in view that Phooli had died before 2004, therefore, the daughters could not be treated to be coparcener. The learned lower appellate Court was pleased to hold that defendants No. 1 & 2 had 1/3rd share each being coparceners whereas 1/3rd share of Phooli was to be inherited by all the legal heirs in equal share. The decree was accordingly passed. R.S.A. No. 2087 of 2009 3 The learned counsel for the appellant contends that this appeal raises the following substantial questions of law :- 1. Whether the judgment and decree passed by the learned lower appellate Court is outcome of misinterpretation of Sections 6, 8 & 10 of the Hindu Succession Act, 1956 thus perverse ? 2. Whether the judgment and decree passed by the learned lower appellate Court is perverse as it has not met with the reasoning given by the learned trial Court in dismissing the suit ? 3. Whether jurisdiction of the Civil Court was barred in view of availability of remedy of statutory appeal under the Punjab Land Revenue Act against sanctioning of mutation ? In support of the substantial question of law the learned counsel for the appellants contends, that the learned lower appellate Court misinterpreted the provisions of Sections 6, 8 & 10 of the Hindu Succession Act, 1956. The contention raised is that Phooli died intestate, and the learned lower appellate Court wrongly applied Section 6 of the Hindu Succession Act to the facts of the case. However, this contention of the learned counsel for the appellant is misconceived as admittedly property in hands of Shri Phooli was joint coparcenary property. The learned lower appellate Court rightly applied Section 6 of the Hindu Succession Act to determine the share of the parties, the first substantial question of law raised is, therefore, totally misconceived and in fact does not arise. R.S.A. No. 2087 of 2009 4 It is also the contention of the learned counsel for the appellant that the learned trial Court had given good reasons for dismissing the suit filed by the plaintiff. The reasoning given by the learned trial Court has not been met by the learned lower appellate Court while reversing the finding of the learned trial Court. This plea again deserves to be noticed to be rejected. The learned lower appellate Court has given good reasons for rejection of the reasoning given by the learned trial Court. The learned lower appellate Court rightly applied Section 6 of the Hindu Succession Act to the facts of the case, which were not in dispute. It cannot be said that no reasons have been given for reversing the findings of the learned trial Court as contended. The final contention of the learned counsel for the appellants is that the suit filed by the plaintiff / respondent was barred as Civil Court did not have the jurisdiction on account of availability of remedy of statutory appeal under the Land Revenue Act against the order of mutation. This plea also deserves to be rejected, for more than one reasons. Firstly, mutation gives no right to the parties as the basic relief claimed is that of declaration of entitlement to the share in the property of Phooli. In view the declaration of the Civil Court the revenue Court would be bound by the judgment of the Civil Court to correct the revenue record which will result in setting aside the mutation. The right claimed in the suit could not be adjudicated by revenue court, therefore, it can not be said that in view of availability of appeal under revenue Act, the jurisdiction of Civil R.S.A. No. 2087 of 2009 5 Court was barred. The substantial questions of law raised are answered against the appellants. No merit. Dismissed in limine. 20.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE