RSA No.3464 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3464 of 2010 (O&M) Date of Decision: 12 - 7 - 2011 Dharamvir and others ....Appellants v. Om Prakash ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Harsh Aggarwal, Advocate for the appellants. Mr.Adarsh Jain, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) In CM No.10122-C of 2010 For the reasons stated in the application, delay of 115 days in refiling the appeal is condoned. C.M. is disposed of. In CM No.10121-C of 2010 For the reasons stated in the application, delay of 9 days in filing the appeal is condoned. C.M. is disposed of. In CM No.10123-C of 2010 The present application has been filed for bringing on record RSA No.3464 of 2010 (O&M) [2] the legal representatives of defendant-Jagdish Chand. After hearing counsel for the applicant, the present application is allowed subject to all just exceptions. RSA No.3464 of 2010 This Regular Second Appeal has been filed by legal representatives of Jagdish Chand appellant-defendant No.1 and Jai Prakash appellant-defendant No.2. The suit preferred by Om Parkash plaintiff- respondent was decreed with costs. Aggrieved against the same, the present appellants filed an appeal before the lower Appellate Court which was dismissed. Aggrieved against the same, they have filed the present appeal. Late Shri Tulsi Ram @ Kallu had three sons, namely, Om Prakash plaintiff-respondent, Jagdish Chand and Jai Prakash appellant- defendants. Om Prakash instituted a suit for declaration that he is owner in possession of agricultural land to the extent of 1/15th share of the suit land, description and detail of which was given in para 1 of the plaint. He also prayed for consequential relief of permanent injunction restraining the defendants from dispossessing him from the suit property to the extent of his share and from alienating the same. He specifically pleaded that the suit land was ancestral property of the parties to the suit and that parents of the parties had left for their heavenly abode, leaving behind plaintiff and defendants as their only legal heirs. He disputed any family settlement arrived at between Tulsi Ram @ Kallu, his wife and defendants to the suit. It was further pleaded that defendants got a decree from the civil court by instituting another Civil Suit No.105 of 23.2.1995 in the Court of Civil Judge (Sr.Division), Faridabad and that the decree dated 22.4.1995 passed in the above-said suit was not binding upon him as the same was passed RSA No.3464 of 2010 (O&M) [3] behind his back. It also contained no mentioning of any family settlement. They also got the mutation entered in their favour on the basis thereof. Notice in the suit was issued and the present appellant- defendants caused appearance. They specifically denied the fact that the suit property was ancestral. They also disputed the ownership and possession of the plaintiff-respondent on the suit property. Upon the pleadings of the parties, various issues were framed by the trial Court, but the only crucial issue, amongst them which germane to the decision of this case was whether the suit property was ancestral or not? It is apt to reproduce hereunder the issues framed by the trial Court:- 1) Whether suit property was ancestral?OPP 2) Judgment and decree dated 22.4.1995 passed in Civil Suit No.105 dated 23.2.1995 is illegal, null and void? OPP 3) Whether mutation No.1734 dated 19.7.1997 is illegal, null and void? OPP 4) Whether plaintiff is owner in possession of 1/15th share in the suit property as alleged? OPP 5) Whether plaintiff is entitled for permanent injunction? OPP 6) Whether plaintiff has no locus standi to file the present suit? OPD 7) Whether plaintiff is estopped from filing the present suit? OPD 8) Whether suit is barred for non-affixation of court fee? OPD 9) Whether this court has no jurisdiction to try the present suit? OPD 10) Whether suit is barred by limitation? OPD 11) Relief. The trial Court appreciated the oral as well as documentary evidence led by the parties, primarily on the ground that Jai Prakash defendant to the suit in the cross-examination had not denied the fact that RSA No.3464 of 2010 (O&M) [4] property may have devolved upon his father from his grandfather Ganga Parshad, who inherited the same from his father Pratap. Therefore, the property was held to be ancestral. Ultimately, issues No.1 to 5 were decided in favour of the plaintiff and issues No.6 to 10 against the defendants. Suit was decreed with costs. It declared the ownership and possession of 1/15th share of the plaintiff and restrained the defendants from interfering in his enjoyment. This finding of fact has been affirmed by the lower Appellate Court. Mr.Harsh Aggarwal, learned counsel appearing for the appellants has not been able to to dislodge the concurrent findings of fact which is based on just appreciation of evidence brought on record. Mr.Aggarwal has very fairly stated that he is aware that this Court will not tread on the path of re-appreciation and re-appraisal of evidence. Therefore, he has modified his prayer to the extent that even if it is held that the property was ancestral, Tulsi Ram was entitled to his share in his own right and, therefore, he is a shareholder in the suit property, which has to accrue to the defendants because of civil court decree dated 22.4.1995 passed by the Court of Shri Shiv Sharma, Civil Judge (Sr. Division), Faridabad. Mr.Adarsh Jain, learned counsel appearing for the plaintiff- respondent has very fairly stated that he will not be able to counter the legal submission made by Mr.Harsh Aggarwal. This Court appreciates the fair stand taken by Mr.Adarsh Jain. Since the submission made by counsel for the appellants is not disputed, being purely legal, this Court modifies the findings returned by the trial Court and affirmed by the lower Appellate Court qua issue No.4. As a result thereof, it is held that the plaintiff-respondent shall be entitled to RSA No.3464 of 2010 (O&M) [5] 1/20th share of the suit property, instead of 1/15th share. In the above terms, the present appeal is disposed of. Registry is directed to draw a decree accordingly. ( KANWALJIT SINGH AHLUWALIA ) July 12, 2011. JUDGE RC