R. S. A. No. 4791 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4791 of 2010 Date of Decision : February 16, 2011 Shaheed .... Appellant Vs. Fauja Khan and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Shiv Kumar, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 – Shaheed has filed the instant second appeal after the defendants i.e. appellant and proforma respondents no.4 to 7 failed in both the courts below. Suit was filed by Fauj Khan – plaintiff-respondent no.1 and Fajju – plaintiff no.2 (since deceased and represented by respondents no.2 and 3 as his sons/legal representatives). Both the plaintiffs claimed themselves to be sons of Juhar Khan son of Samya son of Jagroop. Defendants no.1 to 4 are sons of Rahim Khan son of Jagroop, whereas defendant no.5 Sattar is son of Ibrahim son of Munir Khan son of Jagroop. R. S. A. No. 4791 of 2010 2 The plaintiffs' case is that the suit property was once owned by Jagroop and has descended to the parties in three branches of the three sons of Jagroop and accordingly, plaintiffs claimed 1/3rd share in the suit property. It was also alleged that defendants no.1 to 4 also had 1/3rd share and defendant no.5 had 1/3rd share in the suit property. Accordingly, plaintiffs sought partition of the suit property. Defendants contested the suit by denying almost every averment of the plaintiffs. The defendants claimed to be owners in possession of the suit property. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Hathin, vide judgment and decree dated 01.10.2009, decreed the plaintiffs' suit and passed preliminary decree for partition of the suit property holding plaintiffs, defendants no.1 to 4 and defendant no.5 to be having 1/3rd share (each set) in the suit property. First appeal preferred by all the defendants stands dismissed by learned Additional District Judge, Palwal, vide judgment and decree dated 20.10.2010. Feeling aggrieved, defendant no.1 only has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that plaintiffs have miserably failed to prove that the suit property is part of Ahata no.1 to 6 and therefore, it cannot be said that entries in Paimaish and R. S. A. No. 4791 of 2010 3 Khasra Abadi of the village pertains to the suit property. It was also contended that the suit property is not proved to be of Jagroop – alleged common ancestor of the parties. It was also canvassed that Jagroop was not common ancestor of the parties. I have carefully considered the aforesaid contentions, but find no merit therein. Pedigree Table (Ex.P-2) reveals that Jagroop had four sons, out of whom one Gutta died. Remaining three sons Rahim Khan, Munir Khan and Samya are ancestors of the parties. Plaintiffs have descended from Samya, whereas defendants no.1 to 4 are sons of Rahim Khan and defendant no.5 is grandson of Munir Khan. It is thus manifest that Jagroop was common ancestor of the parties and plaintiffs are from the branch of one of the three sons of Jagroop, whereas defendants no.1 to 4 are sons of Rahim Khan son of Jagroop and defendant no.5 is grandson of Munir Khan son of Jagroop. As regards the contention that the plaintiffs have not proved that suit property was once owned by Jagroop, suffice to mention that admission made by defendant no.1 – appellant in cross-examination completely negatives the aforesaid contention. He has categorically stated that they have received the suit property from their `Baap Dada' (father – grandfather). Jagroop was grandfather of defendant no.1. It is thus apparent from admission of defendant no.1 – appellant himself that the suit R. S. A. No. 4791 of 2010 4 property was once owned by Jagroop – common ancestor of the parties. Consequently, concurrent finding recorded by both the courts below in favour of the plaintiffs is fully justified by the evidence on record and cannot be said to be perverse or illegal in any manner. The said finding is not based on misreading or misappreciation of evidence. The said finding, therefore, does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. For the reasons aforesaid, I find no merit in the instant second appeal. The appeal is accordingly dismissed in limine. February 16, 2011 ( L. N. MITTAL ) monika JUDGE