Regular Second Appeal No.3286 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3286 of 2011 (O&M) Date of Decision:-10.8.2011 Smt.Kamla ...Appellant Versus Omparkash and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.N.S.Shekhawat, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) The compendium of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Smt.Kamla daughter of Tara Chand, appellant-plaintiff (for brevity “the plaintiff”), filed the suit and sought a decree for declaration to the effect that she alongwith her brothers Om Parkash and Jagdish Parshad respondent-defendants (for short “the defendants”) are owners and in possession to the extent of 1/27th share each in the agricultural land in dispute, situated in the revenue estate of village Kharkara, Tehsil and Distt.Mohindergarh and the judgment and decree dated 20.7.1981 (Ex.D5 and Ex.D6), rendered in Civil Suit bearing No.568 of 1981 titled as Om Parkash Vs. Tara Chand (Ex.D7) and mutation bearing No.1376 dated 3.5.1991 in pursuance thereof, are wrong, illegal, null, void and not binding on her (plaintiff) rights. 2. The case set up by the plaintiff, in brief in so far as relevant, was that the land in dispute is a joint Hindu family ancestral coparcenary property and after the death of her father Tara Chand, she and defendants became its owners and in possession of their respective shares and the impugned decree (Ex.D6) in favour of defendant No.1 suffered by Tara Chand is illegal, null, void and in operative. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of Regular Second Appeal No.3286 of 2011 (O&M) -2- declaration against the defendants in the manner indicated hereinbefore. 3. Although proforma defendant No.2 filed his (admitted) written statement toeing the line of pleadings contained in the plaint, however, contesting defendant No.1 refuted the claim of the plaintiff and filed his separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit; estoppel, time barred, cause of action and locus standi of the plaintiff etc. According to the contesting defendant that neither the suit land was ancestral coparcenary property nor the plaintiff has any right, title or interest in it. The decree (Ex.D6) and mutation in pursuance thereof were termed to be legal and binding on the rights of the plaintiff. 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. 4. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case. 5. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire oral as well as documentary evidence on record, dismissed the suit of the plaintiff, by means of impugned judgment and decree dated 20.2.2008. 7. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 23.12.2010. 8. Appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present regular second appeal. 9. After hearing the learned counsel for the appellant-plaintiff, going Regular Second Appeal No.3286 of 2011 (O&M) -3- through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the instant appeal in this context. 10. Ex facie, the argument of the learned counsel that since the plaintiff is the daughter of Tara Chand, so, she is entitled to her share in the Hindu family coparcenary property after his death, but the Courts below committed a legal mistake in dismissing her (plaintiff) suit, sans merit. 11. As is evident from the record that plaintiff has based her claim on the ground that the land in dispute was Hindu family coparcenary property in the hands of her father and she has right from birth, but she has miserably failed to prove the ancestral nature of the property. Having completed all the codal formalities, the trial Court recorded a finding of fact based on the evidence that the plaintiff has utterly failed to prove the ancestral nature of property after her marriage long ago, she ceases to be a member of joint Hindu family property of her father and only defendant No.2 could challenge the decree (Ex.D6). The plaintiff has no locus standi to challenge the decree, which was validly passed in favour of contesting defendant. It was also held that the simple suit for declaration filed by her without claiming possession was not maintainable and is clearly time barred. In this manner, the trial Court has rightly dismissed the suit of the plaintiff. Not only that, the decision of the trial Court was also upheld by the first appellate Court on all the vital counts, by virtue of impugned judgment and decree dated 23.12.2010. 12. Learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to contend as to how and in what manner, any interference is warranted in the impugned judgments and decrees of the Courts below. Moreover, 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 concurrent findings of fact that the plaintiff has miserably failed to prove the Regular Second Appeal No.3286 of 2011 (O&M) -4- ancestral nature of the property, after her marriage long ago, she ceases to be a member of joint Hindu family property of her father and only defendant No.2 could challenge the decree (Ex.D6). The plaintiff has no locus standi to challenge the decree, which was validly passed in favour of contesting defendant. It was also held that the simple suit for declaration filed by her without claiming possession was not maintainable and suit is clearly time barred. 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 take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this behalf. 13. 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 behalf of the appellant, in this relevant direction, have already been duly considered and dealt with by the Courts below. 14. In this manner, 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 the obtaining circumstances of the present case. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 16. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 10.8.2011 Judge AS Whether to be referred to reporter?Yes/No