R.S.A. No. 2498 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2498 of 2007 Date of decision: 27.03.2009 Balbir Singh ....Appellant Versus Santra Devi and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. N.S. Shekhawat, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal has been filed against the judgment and decree dated 15.1.2007 passed by the learned Courts below vide which the suit for declaration and permanent injunction filed by the plaintiff/appellant has been ordered to be dismissed. The plaintiff brought a suit for declaration claiming to be owner of half share of the suit property with consequential relief of injunction restraining, the defendants from interfering with possession, with alternative relief of possession in case of dispossession during the pendency of the suit. It was pleaded by the plaintiff that the property in dispute was ancestral coparcenary property, which was given to him under oral family settlement in the year 1990. However, the father of the plaintiff/appellant threatened to alienate the suit property, which necessitated the filing of the present suit. Father of the plaintiff contested the suit and controverted the R.S.A. No. 2498 of 2007 -2- pleas raised by the plaintiff/appellant. He denied that the suit property was ancestral, coparcenary property or that half share of the property was given to the plaintiff/appellant, as claimed. During the pendency of the suit Ram Sarup i.e. father of the plaintiff died, and his legal representatives were brought on record. The daughters of Ram Sarup i.e. respondents No. 1 to 5 filed a separate civil suit against their father and brother, and consent decree, property of Ram Sarup was transferred in favour of his legal heirs, including his sons i.e. Krishan Kumar and Pardeep Kumar, respondents No. 7 and 8. The suit was separately contested by defendant/respondents No. 7 and 8. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that the plaintiff was not entitled to relief of permanent and mandatory injunction. The plaintiff/appellant has been non-suited by the learned lower appellate Court by recording finding as under: - “30. Now I come to the merits of the case. According to the plaintiff, there was oral family settlement in the year 1990 by virtue of which his father Ram Sarup gave him ½ share of the land. In order to prove oral family settlement, he examined PW1 Chandgi Ram son of Ram Nath, aged 45 years, who deposed that in the year 1990 there was family settlement. Ram Sarup had given his land equally to his two sons and the daughers consented to it. To the similar effect is the statement of PW2 Ram Chander. However, no date or month of family settlement came on the record. It was never brought to the notice of revenue authorities. 31. PW3 plaintiff aged 70 years, deposed that the suit land was ancestral in nature and he became coparcener by birth. He further stated that in a family settlement his father had divided his land equally amongst R.S.A. No. 2498 of 2007 -3- his two sons. Thereafter, they started cultivating the land in equal shares. During cross-examination, he admitted that the mutation was attested in favour of two brothers and five sisters. He further admitted that he was culstivating only 1/7th share. Therefore, he demolished his own case because in the examination-in-chief he claimed possession of ½ share but in the cross-examination he admitted that he was cultivating only 1/7th share." The learned counsel for the appellant contends that this appeal raises the following substantial question of law: - "Whether the findings recorded are outcome of misreading of evidence, thus, perverse?" In support of this question, the learned counsel for the appellant contended that the appellant had also prayed for alternative relief of possession and merely because he was in possession of 1/7th share could not be a ground to non-suit him, qua remaining land. This contention cannot be accepted in view of the categorical admission that he was in possession of 1/7th share. Findings recorded by the learned Courts below are based on appreciation of evidence on record, which cannot be said to be perverse. The findings do not call for any interference. Thus, finding no merit in this appeal, the same is ordered to be dismissed in limine. (Vinod K. Sharma) Judge March 27, 2009 R.S.