R.S.A. No. 2609 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2609 of 2009 Date of decision: 27.01.2010 Sunil Kumar ....Appellant Versus Santro ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sudhir Mittal, Advocate, for the appellant. VINOD K. SHARMA, J.(ORAL) This regular second appeal by the defendant/appellant, is directed against the judgment and decree dated 28.02.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent, stands dismissed. The plaintiff/respondent brought a suit for possession and injunction, on the basis of release deed, said to have been executed by Dariya Singh, father of plaintiff/respondent, in her favour. The suit was contested. Property was held to be coparcenary Joint Hindu Family Property, therefore, the suit was held to be not competent. Observations were recorded by the learned Court, that Dariya Singh had ownership claim to the extent of 1/4th share, and the release deed could be valid qua his share. However, keeping in view that Dariya Singh was still alive, suit was held to be not maintainable, even qua the said share. The plaintiff filed cross-objections against findings of the R.S.A. No. 2609 of 2009 -2- learned trial Court, though the suit filed by the plaintiff was dismissed. Counter-claim filed by the appellant before the learned lower appellate Court was dismissed, as appeal filed by the plaintiff/respondent was also dismissed, the decree passed by learned trial Court was upheld. Learned counsel for the appellant contends, that appeal raises the following substantial question of law: - “Whether in view of the finding in favour of the appellant, could the counter-claim of the appellant be still dismissed?” In support of the substantial question of law, the learned counsel for the appellant contends, that once the finding was recorded in favour of the appellant by the learned Court below, there was no justification with the Court to reject the counter-claim, which deserved to be allowed, in view of positive findings in favour of appellant. This contention of the learned counsel for the appellant is totally mis-conceived, nor the substantial question of law raised arises in this appeal. There is no decree against the appellant, which could entitle him to maintain an appeal. There was no counter-claim filed by the appellant before the learned trial Court, therefore, once the suit filed by the plaintiff was dismissed, merely because of certain findings were recorded, no appeal was competent against the findings of the Court, as appeal lies only against the decree. The regular second appeal being not competent is dismissed. (Vinod K. Sharma) Judge January 27, 2010 R.S.