Regular Second Appeal No. 273 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 273 of 2006 (O&M) Date of decision : July 12, 2010 Jagjit Singh and others ....Appellants versus Sukhwinder Singh Sandhu and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. DS Sandhu, Advocate, for the appellants Mr. KS Bhullar, Advocate, for respondent no. 1 Mr. JR Mittal, Senior Advocate with Mr. Lalit Sharma, Advocate, for respondent no. 2 L.N. Mittal, J. (Oral) CM No. 7401.C of 2008 This is application by respondent no. 2 Jagdish Kaur for being transposed as appellant in the instant second appeal. Sukhwinder Singh Sandhu respondent no. 1 filed suit against appellants (four in number) and respondent no. 2. In the said suit, respondent no. 2 was defendant no. 3. Appellants no. 1 and 2 and respondent no. 1 are sons of Mihan Singh and Iqbal Kaur whereas appellants no. 3 and 4 are their daughters and respondent no. 2 is widow of their pre-deceased son Jaswinder Pal Singh. Suit filed by respondent no. 1 Regular Second Appeal No. 273 of 2006 (O&M) -2- was contested by the defendants i.e. appellants and respondent no. 2. Learned trial court vide judgment and decree dated 31.7.2002 decreed the plaintiff's suit. First appeal against the same was preferred by defendants no. 1, 2, 4 and 5 only impleading plaintiff and defendant no. 3 as respondents. Defendant no. 3/respondent no. 2 remained ex parte in the lower appellate court. Aforesaid first appeal was dismissed by the lower appellate court vide judgment and decree dated 16.10.2004. The instant appeal has also been preferred by defendants no. 1,2, 4 and 5 impleading plaintiff and defendant no. 3 as respondents. Respondent no. 2 has alleged in the application that her interest is identical with that of the appellants but now the appellants want to effect compromise with respondent no. 1, thereby harming interest of respondent no. 2 to deprive her of her share in the suit property. Accordingly, respondent no. 2 has prayed that she be transposed as appellant. The application has been opposed by appellants and respondent no. 1. I have heard learned counsel for the parties and perused the case file. Learned counsel for respondent no. 2 – applicant vehemently contended that applicant-respondent no. 2 did not file second appeal as her interest was common with that of the appellants but now the appellants want to effect compromise with respondent no. 1 so as to deprive appellant no. 2 of her share in the suit property and in fact, appellants have already moved CM No. 2889.C of 2010 for withdrawal of the appeal and therefore, applicant-respondent no. 2 is required to be transposed as appellant. On the other hand, learned counsel for the appellants and Regular Second Appeal No. 273 of 2006 (O&M) -3- respondent no. 1 pointed out that in the instant second appeal, appellants have accepted Will dated 7.5.1996 and have only sought modification of judgments and decrees of the courts below as per said Will. It is also pointed out that as per said Will respondent no. 2 does not get any share in the suit property and therefore, respondent no. 2 cannot be transposed as appellant. It is also contended that second appeal on behalf of respondent no. 2 would have been hopelessly barred by limitation at the time of filing of instant application. I have carefully considered the rival contentions. Perusal of grounds of appeal reveals that the appellants have accepted the finding of the courts below regarding Will dated 7.5.1996 and have sought modification of judgments and decrees of the courts below on the basis of the said Will only. According to said Will, appellant no. 1 and respondent no. 1 had to pay Rs 3 lacs each to appellant no. 2. The appellants have sought the said relief in the instant second appeal. Consequently, in instant second appeal, interest of the appellants cannot be said to be common or identical with that of respondent no. 2. In this view of the matter, respondent no. 2 cannot be transposed as the appellant. If Will dated 7.5.1996 is accepted as held proved by the courts below and as accepted by the appellants in instant second appeal, respondent no. 2 is left with no right in the suit property and is, therefore, not entitled to any relief even if transposed in the instant second appeal. In addition to the aforesaid, when instant application was filed by respondent no. 2 for being transposed as appellant, limitation period for filing instant second appeal had expired long time ago and if second appeal had been filed by her at that time, it would have been hopelessly barred by Regular Second Appeal No. 273 of 2006 (O&M) -4- limitation. It is also worth noticing with significance that respondent no. 2 did not even appear in first appeal before the lower appellate court and was proceeded ex parte and for this added reason as well, respondent no. 2 cannot be transposed as appellant in the second appeal. For the reasons aforesaid, the application under disposal is dismissed. CM No. 2889.C of 2010 and RSA No. 273 of 2006 Appellants have moved application bearing CM No. 2889.C of 2010 for withdrawal of appeal. The said application is allowed and appeal bearing RSA No. 273 of 2006 is accordingly dismissed as withdrawn. ( L.N. Mittal ) July 12, 2010 Judge 'dalbir'