Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal Nos.768 & 775 of 2009 (O&M) Date of Decision: 11.8.2011 Mohinder Singh ...Appellant Versus Balihar Singh alias Balhar Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Yogesh Kumar Sharma, Advocate for the appellant. Mr.H.S.Gill, Senior Advocate with Mr.K.B.S.Bath, Advocate for respondent No.1. M ehinder S ingh S ullar , J . (Oral) As an identical factual matrix is involved, therefore, I propose to dispose of above indicated two regular second appeals, by virtue of this common judgment, in order to avoid the repetition. Since the Courts below duly recapitulated and described the compendium of the pleadings and evidence brought on record by the parties, so, there appears to be no necessity to again reproduce and repeat the same in the instant regular second appeals in this context. 2. However, the crux of the facts, culminating in the commencement, relevant for deciding the present appeals and emanating from the record, is that Shadi Singh was the owner of chunk of land. He had four sons, namely, Bakshish Singh, Pakhar Singh, Sarwan Singh and Shanker Singh. After the death of Shadi Singh, all his four sons inherited the property in equal shares, by way of natural succession. Shankar Singh son of Shadi Singh sold his share in the agricultural land to his brother Pakhar Singh, vide sale deed dated 10.9.1980 (Ex.D1). Subsequently, he has also sold the joint abadi property in dispute (Taur), measuring 2 kanals 4 marlas, comprised in khasra No.704 to his son Balihar Singh Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -2- alias Balhar Singh respondent No.1-plaintiff, by virtue of sale deed dated 15.12.1999 (Ex.P1). 3. Having purchased the Gairmumkin Abadi of land in dispute, Balihar Singh alias Balhar Singh respondent No.1-plaintiff, in RSA No.768 of 2009 (in short “Ist appeal”) filed the civil suit bearing No.702 of 2003, seeking a decree for partition against Bakshish Singh son of Shadi Singh, Manjit Singh & Naranjan Singh sons of Sarwan Singh, Mohinder Singh and Balbir Singh sons of Pakhar Singh (for short “the defendants”), inter-alia pleading that he (plaintiff) is a co- sharer/co-owner in the Gairmumkin plot (Taur) in dispute, but the defendants have denied his ownership. He asked them to admit his claim, but in vain, which necessitated him to file the present suit. On the basis of aforesaid allegations, the plaintiff filed the Ist suit against the defendants for a decree of partition, in the manner indicated hereinbefore. 4. The remaining defendants did not contest, however, Mohinder Singh (contesting defendant No.4) refuted the claim of the plaintiff and filed his written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, jurisdiction, misjoinder & non-joinder of necessary parties, cause of action and locus standi of the plaintiff. The case set up by the contesting defendant, in brief in so far as relevant, was that Shankar Singh, father of the plaintiff, had sold his entire estate, including the suit land to his father Pakhar Singh. As such, Shankar Singh was not left with any share in the land in dispute, bearing Khasra No.704. The sale deed executed by Shankar Singh in favour of the plaintiff and mutation, in pursuance thereof, were termed to be wrong, illegal and result of fraud. According to the contesting defendant that the plaintiff has got no right, title or interest in the suit land. It will not be out of place to mention here that the contesting defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -3- the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues in Ist suit for proper adjudication of the case:- 1. Whether the plaintiff is entitled for partition by way of metes and bounds?OPP 2. Whether the plaintiff is a co-sharer in the suit property?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has no locus standi?OPD 5. Whether the suit is bad for misjoinder and nonjoinder of necessary parties?OPD 6. Whether the suit property is indivisible?OPD 7. Relief. 6. In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court, after taking into consideration the entire evidence on record, decreed the suit of the plaintiff and passed a preliminary decree, by means of impugned judgment and decree dated 9.4.2007. 8. Aggrieved by the decision of the trial Court, the contesting defendant No.4 filed the first appeal, which was dismissed with costs as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 2.9.2008. 9. In the same sequence, Mohinder Singh son of Pakhar Singh appellant-plaintiff filed second civil suit, bearing No.73 of 2002 (in short “2nd suit”) against Balhar Singh, Shankar Singh son of Shadi, Balbir Singh, Gurdawar Singh sons of Pakhar Singh, Manjit Singh, Naranjan Singh sons of Sarwan Singh and Bakshish Singh son of Shadi, for a decree of declaration to the effect that he (plaintiff) is co-owner and in possession in equal share of 1/4th share of Shankar Singh in the suit property and the sale deed dated 15.12.1999 (Ex.P1) executed by him in favour of his son and mutation No.3352, in pursuance thereof, are illegal, null and void, with a consequential relief of permanent injunction, restraining defendant No.1 from alienating the property in dispute. Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -4- 10. The defendants (therein) contested the 2nd suit and filed written statement, inter-alia, denying the allegations contained in the plaint and prayed for dismissal of the 2nd suit. 11. The plaintiff, denying the contents of the written statement and reiterating the pleadings contained in his plaint, filed the replication. From the pleadings of the parties, the trial Court framed the following issues in 2nd suit for proper adjudication of the case:- 1. Whether the sale deed dated 15.12.1999 allegedly executed by defendant No.2 in favour of defendant No.1 is illegal, null and void?OPP 2. Whether the plaintiff is entitled for declaration as prayed for?OPP 3. Whether the plaintiff is entitled to the injunction as prayed for?OPP 4. Whether the suit is within time ?OPP 5. Relief. 12. The second suit of the plaintiff was dismissed by the trial Court, vide impugned judgment and decree dated 9.4.2007. The appeal filed by him was also dismissed with costs, by the first appellate Court, by virtue of impugned judgment and decree dated 2.9.2008. 13. Appellant Mohinder Singh (defendant No.4 in the Ist suit) and (plaintiff in the 2nd suit) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed RSA No.768 of 2009 in the first suit and RSA No.775 of 2009 in the second suit. That is how I am seized of the matter. 14. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant regular second appeals in this respect. 15. Ex facie, the argument of learned counsel for the appellant that since Shankar Singh has already sold his share to Pakhar Singh, father of the appellant, by means of sale deed dated 10.9.1980 (Ex.D1), so the subsequent sale deed dated 15.12.1999 (Ex.P1) executed by him in the name of his son Balihar Singh and mutation, in pursuance thereof, are illegal, sans merit. 16. As is evident from the record that Shadi Singh was the owner of the Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -5- land, including the land in dispute. In the wake of his death, his four sons, namely Bakshish Singh, Pakhar Singh, Sarwan Singh and Shankar Singh inherited his property in equal shares in natural succession. It is not a matter of dispute that Shankar Singh has sold agricultural land of his share to his brother Pakhar Singh, vide sale deed (Ex.D1). He has sold the remaining abadi land in dispute, measuring 2 kanals 4 marlas, comprised in Khasra No.704 to his son Balihar Singh, by means of sale deed (Ex.P1). 17. Above being the position on record, now the short and significant question, though important that arises for determination in these appeals is, as to whether Shankar Singh had sold the abadi land in dispute (Taur), bearing khasra No.704 to Pakhar Singh, vide sale deed (Ex.D1) or not ? 18. Having regard to the rival submissions of the learned counsel for the parties, to me, the answer must obviously be in the negative. 19. The bare perusal of the record would reveal that the land in dispute bearing khasra No.704 was not the subject matter of first sale deed (Ex.D1) in respect of agricultural land. Subsequently, Shankar Singh sold his abadi portion (Taur), bearing Khasra No.704 to his son Balihar Singh, through the medium of sale deed (Ex.P1). Once it is proved that Shankar Singh did not sell the abadi/Taur in question to Pakhar Singh in the first sale deed (Ex.D1), then the appellant has got no right, title or interest in it. 20. The celebrated contention of learned counsel that since Shankar Singh had already sold his share in agricultural land to his father, vide sale deed (Ex.D1), so, it should be presumed that the abadi land in dispute (Taur) would be deemed to have been sold, is not only devoid of merit but misplaced as well. 21. As indicated earlier, the land in dispute, bearing khasra No.704 was not the subject matter of the sale deed (Ex.D1). In this regard, the oral evidence brought on record on behalf of the appellant is not admissible, in view of Section 91 of the Indian Evidence Act, 1872 (hereinafter to be referred as “the Act”), Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -6- which postulates that “when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible.” 22. Sequelly, section 92 of the Act escalates that when the terms of any such contract, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. 23. In this manner, it stands proved on record that Balihar Singh alias Balhar Singh became co-owner in the abadi suit land (Taur), by means of sale deed (Ex.P1) and he has every right to get his portion separated, by way of partition as joint abadi (Taur). Appellant Mohinder Singh did not have any right, title or interest in it. Thus, the contrary arguments of learned counsel for the appellant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 24. Moreover, the trial Court has rightly negatived the claim of the appellant in the first suit. Not only that, the decision of the trial Court was also upheld by the first appellate Court, through the medium of impugned judgment dated 2.9.2008, which, in substance, is (paras 10 to 12) as under:- “10. Validity of the sale deed dated 15.12.1999 (Ex.P1) is assailed on the ground that Shankar Singh had already sold off his share in the suit property to the plaintiff vide sale deed dated 10.9.1980 (Ex.D1). Otherwise genuineness of sale deed dated 15.12.1999 is not in dispute. 11. The learned trial Court has rightly observed in the impugned order that a perusal of sale deed dated 10.9.1980 reveals in no unambiguous terms that khasra No.704 (2-4) was not subject matter of this Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -7- sale deed. Without having sold land comprised in khasra No.704 (2-4) vide sale deed Ex.D1 Shankar Singh cannot be said to have lost his right in that land. An attempt is made on the part of the plaintiff/appellant to say that sale of khasra No.704 be assumed vide Ex.D1. However, this argument is not tenable in the terms of the bar prescribed by Section 92 of Indian Evidence Act. With these observations, foundations of the case of the plaintiff stand removed altogether and he cannot assail right and competence of Shankar Singh to sell land comprised in khasra No.704 vide sale deed dated 15.12.1999 Ex.P1. Oral evidence is led by Mohinder Singh does not promote or establish his case in as much it is found to be contrary to the contents of sale deed Ex.D1. I concur with the findings of the learned trial court on all the substantive issues and affirm them. 12. With regard to suit property being indivisible or otherwise, the learned trial court has referred to record of rights wherein suit property is described as Gair Mumkin Abadi and not as a common well. Reference is also made to admission of DW1 Mohinder Singh in his cross-examination that various co-sharers, have already installed their separate tubewells and it concluded from the evidence that the Well was not longer being used for the purpose of irrigation and as such there was no restriction to partition it.” 25. Sequelly, the learned counsel for the appellant did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant connection. 26. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the aforesaid concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to Regular Second Appeal Nos.768 & 775 of 2009 (O&M) -8- take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 27. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below. 28. Likewise, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 29. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 30. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeals are hereby dismissed as such. (Mehinder Singh Sullar) 11.8.2011 Judge AS Whether to be referred to reporter?Yes/No