RSA No.1094 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1094 of 2009 (O&M) Date of decision: 11.8.2010 Madan Lal ......Appellant(s) Versus Nagar Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Bharat Bhushan Sharma, Advocate for the appellant. Mr. N.P. Jaitley, Advocate for the respondent. Rakesh Kumar Garg, J. CM No.3154-C of 2009 For the reasons mentioned in the application, delay of 36 days infiling this appeal is condoned. CM stands disposed of. RSA No.1094 of 2009 (O&M) This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit for mandatory injunction filed by the plaintiff-respondent directing the appellant to hand over the demised premises to the plaintiff-respondent has been decreed. Briefly stated, the facts and circumstances leading to filing of this appeal as put forward by the plaintiff-respondent are that he is owner of the suit property consists of ground floor and first floor. The ground floor of the house is in possession of Kamal Sharma, another son of the plaintiff- respondent, and first floor is in possession of the appellant, who is also son of the plaintiff-respondent. The plaintiff-respondent allowed the appellant to live in the house as licencee. The appellant never treated the RSA No.1094 of 2009 (O&M) 2 the plaintiff-respondent as his father and always misbehaved with him. He is living with his another son at Panchkula and has no other property except the house in question. He requested the appellant to vacate the suit property but to no avail. A legal notice dated 3.1.2005 was served upon him and the other occupants of the house but to no avail. The appellant also failed to deposit the water charges and arrears and had no right to retain the possession of the house in question and is liable to be ejected. Since the appellant failed to vacate and hand over the possession, through this suit the respondent sought a decree for mandatory injunction to direct the appellant to vacate the same. Upon notice, the appellant contested the suit. Various preliminary objections were raised in the written statement. On merits, it was pleaded that the plaintiff-respondent was not the only owner of the house in question. The property in dispute was ancestral property and the plaintiff-respondent was its Karta. The house in question was renovated and constructed upto the first floor by the appellant and his brothers. Kamal Sharma and Manohar Lal. He was living in the house being son of the plaintiff. Later on in an oral family settlement, house in question was allotted to him. All the legal heirs of the plaintiff got their share in other properties. While denying other averments of the plaint, the defendant- appellant prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled to mandatory injunction as prayed for? 2. Whether the suit is not maintainable? OPD 3. Relief.” The trial Court found that the plaintiff-respondent was the RSA No.1094 of 2009 (O&M) 3 owner of the suit property which he purchased from one Nathu Ram vide sale deed Ex.P-1 dated 6.10.1971 but there was no documentary evidence on record to establish whether the house in question was given to the appellant on a licence or in an oral family settlement. The trial Court on the basis of oral testimony of the witnesses found that the appellant was residing in the house in question which came into his share during the partition proceedings which had taken place between the parties long back and thus, the plaintiff-respondent was not entitled to the mandatory injunction as prayed for and dismissed the suit. Dissatisfied from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent filed an appeal before the Lower Appellate Court which was accepted vide impugned judgment and decree dated 8.10.2008. While accepting the appeal, the Lower Appellate Court recorded a finding of fact that the suit property was self purchased property of the plaintiff-respondent. The Lower Appellate Court also found that there was no written family settlement between the parties despite the fact that it involved the rights of so many persons in so many properties which were having the value of more than Rs.100/- and therefore, the plea of oral settlement was not acceptable. Moreover, after reappraisal of the testimony of DW-3 Karam Chand, the Lower Appellate Court came to the conclusion that no settlement had ever taken place in the presence of witnesses between the parties and thus, in these circumstances, the Lower Appellate Court held that the appellant was in possession of the suit property only as a licencee with the consent of the plaintiff-respondent and once the licence was terminated, he had no right to continue in possession and he is liable to vacate the premises. Resultantly, the appeal was accepted and the suit of the plaintiff-respondent was decreed. Not satisfied from the aforesaid judgment and decree of the RSA No.1094 of 2009 (O&M) 4 Lower Appellate Court, the defendant has approached this Court by way of instant appeal submitting that the following substantial questions of law arise in this appeal: “(i) Whether the oral family settlement is maintainable or not? (ii) Whether the appellant is owner of the first floor of the house in terms of the family settlement?” Learned counsel for the appellant has vehemently argued that the factum of oral settlement stood established from the evidence of Ms. Shyama Rani, daughter of the plaintiff-respondent and it was not necessary that family settlement must be recorded in writing. Learned counsel for the appellant further submitted that it has been established on record that the disputed house was purchased after selling the ancestral property by the plaintiff-respondent and in this way the property in dispute was ancestral which was further renovated and constructed at the expenses of the appellant and other brothers and thus, the findings of the Lower Appellate Court are liable to be set aside. On the other hand, learned counsel for the respondent supported the findings of the Lower Appellate Court and submitted that on reappraisal of evidence, a finding of fact has been recorded by the Lower Appellate Court to the effect that the appellant was in possession of the property in dispute as a licencee and there was no oral family partition and therefore, no substantial question of law can be said to be arising in this appeal and the same is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. Indisputably, the property in dispute was purchased by the RSA No.1094 of 2009 (O&M) 5 plaintiff-respondent in the year 1971 as per sale deed Ex.P-1. It is the case of the appellant that the suit property was purchased after selling the ancestral house in Dina Nagar and as such, the suit property was ancestral in the hands of the plaintiff-respondent which came to his share as per oral family settlement between the parties. However, after scrutinizing the evidence on record, the Lower Appellate Court has recorded a finding of fact that there is no evidence on record to show that the suit property was purchased after selling the ancestral house of Dina Nagar, even if it was presumed that the house of Dina Nagar was allotted in lieu of property left in Pakistan. As a result the fact remains that in the absence of any evidence, no fault can be found in the findings that the suit property is the self purchased property of the appellant. Not only this, there is absolutely no evidence on record that renovation and construction of the house property was made at the expenses of the appellant. The plea of oral settlement was also not accepted by the Lower Appellate Court on scrutiny of the statement of Karam Chand DW-3. In view of the aforesaid, no fault can be found with the findings of the Lower Appellate Court. No substantial question of law arises in this appeal. Dismissed. August 11, 2010 (RAKESH KUMAR GARG) ps JUDGE