R.S.A. No. 3167 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3167 of 2008 Date of Decision: 13.10.2009 Jangir Singh son of Santa Singh resident of village Kallo, Tehsil Mansa, District Mansa. ... Appellant Versus 1. Jagshir Singh @ Jagsir Singh son of Sadhu Singh; 2. Jaspal Singh son of Sadhu Singh; 3. Surjit Kaur wife of Sadhu Singh; all residents of village Kallo, Tehsil Mansa, District Mansa. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.K.S. Phoolka, Advocate, for the appellant. Mr. J.R. Mittal, Senior Advocate, with Mr. S.C. Jindal, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 18.09.06, rendered by the Court of Civil Judge (Senior Division), Mansa, vide which, it dismissed the suit of the plaintiffs, and the judgement and decree dated 30.05.08, rendered by the Court of R.S.A. No. 3167 of 2008 2 Additional District Judge, Mansa, vide which, it dismissed the appeal. 2. The facts, in brief, are that, the land, in dispute, measuring 238 kanals 19 marlas, was in possession of Santa Singh and Kartar Singh sons of Gurdit Singh, as co-owners, in equal shares. Sadhu Singh, was the son of Santa Singh. Kartar Singh, was unmarried and died issueless. Sadhu Singh, was adopted, by Kartar Singh, as his son, vide Tabniatnama No. 94 dated 01.12.54, as a result whereof, he acquired right to inherit the share of the property of his adoptive father. It was stated that owing to the aforesaid reason, Sadhu Singh, became dis-entitled to inherit the property of his natural father Santa Singh, who died about 36/37 years ago. It was further stated that after the death of Santa Singh, Sadhu Singh, in connivance with the revenue officials, got effected mutation No. 2402 dated 25.05.65, regarding inheritance of his estate, in his name, as well as in the names of the plaintiffs, in equal shares. It was further stated that, after the adoption of Sadhu Singh, by Kartar Singh, as his son, he was left with no interest, in the property of Santa Singh, and the same, was required to be mutated, in favour of the plaintiffs, in equal shares. It was further stated that, by taking undue advantage of wrong revenue entries, Sadhu Singh, transferred his alleged share, in the name of his wife Surjit Kaur and sons Jagsir Singh and Jaspal Singh, vide decree dated 24.11.89, passed in Civil Suit No. 1011 dated 21.08.89. It was further stated that they also got sanctioned mutation No. 3787 dated 26.11.90, on the basis of the said decree. It was further stated that the mutation of R.S.A. No. 3167 of 2008 3 inheritance of the estate of Santa Singh, decree dated 24.11.89, and the consequent mutation No. 3787, were illegal, null and void. The defendants, were many a time asked, to admit the claim of the plaintiffs, but to no avail. Ultimately, a suit for declaration, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit, was barred by limitation. It was further pleaded that the plaintiffs, had no locus standi, to challenge the mutation, regarding inheritance of the estate of Santa Singh. It was further pleaded that the suit, was not maintainable. It was stated that Santa Singh, died, before Kartar Singh, and, as such, the mutation, regarding the inheritance of his estate, was rightly sanctioned, in favour of the plaintiffs and defendant No. 4 Sadhu Singh (since deceased). It was further stated that the same was sanctioned, in the presence of the plaintiffs, and they had no right to challenge the same. It was admitted that Santa Singh and Kartar Singh, were the owners in possession of the suit land, measuring 238 kanals 19 marlas, in equal shares. It was also admitted that they are the living sons of Santa Singh, whereas Sadhu Singh, defendant No. 4 (now deceased), was also his son. It was further admitted that Kartar Singh, being issue-less, adopted Sadhu Singh, as his son. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- R.S.A. No. 3167 of 2008 4 (i) Whether the plaintiff are entitled for declaration as prayed for? OPP (ii) Whether decree of Civil Suit No. 104 of 21.08.89, in favour of defendants No. 1 to 3 and mutation entered on its basis are illegal, null and void and unbinding on the rights of the plaintiffs? OPP (iii) Whether suit is barred by limitation? OPD (iv) Whether suit is not maintainable in the present form? OPD (v) Whether plaintiffs have no locus standi or cause of action to file this suit? OPD (vi) Whether defendants are entitled to special costs under Section 35-A CPC? OPD (vii)Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the plaintiffs, which was also dismissed, by the Court of Additional District Judge, Mansa, vide judgement and decree dated 30.05.08. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by Jangir Singh, plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, submitted that the Courts below, were wrong, in coming to the conclusion, that the suit, was R.S.A. No. 3167 of 2008 5 barred by time. He further submitted that the Courts below, were also wrong, in coming to the conclusion, that the suit for declaration, was not maintainable, as no relief of possession or joint possession, was sought, by the plaintiffs. He further submitted that, since the plaintiffs, were the co-sharers in joint possession of the property, in dispute, until and unless, their title was clouded, they were not required to file a suit for declaration. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 10. On the other hand, the Counsel for the respondents, submitted that the Courts below, were right, in holding, that the suit, was barred by time, as the mutation of inheritance of the estate of Santa Singh, which was sanctioned, on 25.05.65, was challenged, in the year 1999. He further submitted that, even Sadhu Singh (now deceased), suffered a decree dated 24.11.89, in civil Suit No. 1011 dated 21.08.89, in favour of his wife Surjit Kaur, and sons Jagsir Singh and Jaspal Singh, and mutation No. 3787 dated 26.11.90, on the basis of the said decree, was sanctioned, in their favour. He further submitted that, as soon as the mutation, was sanctioned, showing Sadhu Singh (now deceased), as owner, to the extent of 1/3rd share, in the estate of Santa Singh, on his death, if, he was not entitled to any share, on account of having been adopted, by Kartar Singh, in the property of Santa Singh, then the suit, could only be filed, within a period of three years, from the date of sanction thereof. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to R.S.A. No. 3167 of 2008 6 be upheld. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the concurrent findings of fact, arrived at, by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The findings, recorded by the first Appellate Court, that Sadhu Singh (now deceased), was adopted, by Kartar Singh, vide Tabniatnama P2, and, as such, he was not entitled to inherit the property of his natural father, after such adoption, were not challenged, by the Counsel for the respondents. The mutation of inheritance of the estate of Santa Singh, father of the plaintiffs, and Sadhu Singh (now deceased), was sanctioned, on 25.05.65. Copy of the mutation is P3. On the basis of this mutation, R.S.A. No. 3167 of 2008 7 changes were effected, in the revenue record. The plaintiffs and Sadhu Singh, were recorded as co-sharers, in joint possession of the property, inherited, by them, on the death of Santa Singh. The moment, the mutation, was sanctioned, and the name of Sadhu Singh, was reflected, in the revenue record, as co-sharer to the extent of 1/3rd share, in the year 1965, if he was not entitled to inherit the property of his natural father, having been adopted by Kartar Singh, then the plaintiffs, came to know of this factum immediately, after the said mutation, was sanctioned. It, therefore, could not be said, that the plaintiffs, did not come to know, that the mutation, had been sanctioned, with regard to the inheritance of the estate of Santa Singh, in favour of Sadhu Singh, though, according to them, he was not entitled to the same, and that his name, was reflected, in the revenue record as a co-sharer in joint possession. It was not that only the plaintiffs were shown to be the co- sharers in joint possession of the property, in dispute, in the revenue record, and, thus, the period of limitation started running, when a cloud was cast on their title, by the defendants. The story, put up by the defendants, to the effect, that they were not aware of this factum earlier, therefore, cannot be taken to be a gospel truth. They did not file the suit, challenging the entries, in the revenue record, within three years, from the date of sanctioning of mutation. Not only this, defendant No. 4 namely Sadhu Singh (now deceased), suffered a decree, in favour of defendants No. 1 to 3, his wife and two sons, on 24.11.89, as a result whereof, his share, in the property, in dispute, was transferred, in their R.S.A. No. 3167 of 2008 8 favour. Their names stood reflected as co-owners in joint possession of the property, in dispute, in the revenue record. Even, after the passing of the said decree, the plaintiffs, did not file a suit for declaration. The suit having been filed, in the year 1999, was, thus, rightly held to be barred by limitation. The findings of the Courts below, that the suit of the plaintiffs, was barred by time, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgments and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 13.10.2009 (SHAM SUNDER) Amodh JUDGE