Regular Second Appeal No. 1226 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1226 of 2011 Date of decision : March 14, 2011 Surjit Kaur and others ....Appellants versus Sarvinder Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms. Lisa Gill, Advocate, for the appellants L.N. Mittal, J. (Oral) Legal heirs of Manjitinder Singh and Satbir Singh defendants no. 1 and 4 have filed the instant second appeal having remained unsuccessful in both the courts below. Suit was filed by respondent no. 1 – plaintiff Sarvinder Singh seeking declaration that he is owner in possession of the suit land and also seeking permanent injunction restraining defendants from dispossessing the plaintiff from the suit land and from alienating the same. Plaintiff's case is based on registered Will dated 26.5.1952 executed in his favour by his mother Hira Devi. Defendants no. 7 and 8 are Regular Second Appeal No. 1226 of 2011 -2- daughters of Hira Devi who also had another daughter Rajinder Kaur. Defendants no. 1 to 6 are descendants of said Rajinder Kaur. Defendants no. 7 and 8 admitted claim of the plaintiff. Defendants no. 1 to 6 contested the claim of the plaintiff and denied the impugned Will dated 26.5.1952. Defendants no. 1 to 6 claimed natural succession from Hira Devi and accordingly they claimed 1/4th share in the suit land. Various other pleas were also raised. Learned Civil Jude (Senior Division), Ferozepur vide judgment and decree dated 7.4.2006 decreed plaintiff's suit. First appeal preferred by some of the defendants has been dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 24.1.2011. Feeling aggrieved, legal representatives of defendants no. 1 and 4 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The basic dispute in the instant lis pertains to Will dated 26.5.1952 set up by the plaintiff. However, execution and validity of the said Will has already been adjudicated upon vide judgment and decree dated 29.3.1974 between the parties. In view of said judgment and decree, issue of the said Will cannot be raised again in the subsequent suit by the contesting defendants and same is barred by principle of resjudicata. In view of the Will in question upheld in judgment and decree dated 29.3.1974 suit of the plaintiff has been rightly decreed. Learned counsel for the appellants contended that mutation on Regular Second Appeal No. 1226 of 2011 -3- the basis of natural succession was sanctioned in favour of all the heirs of Hira Devi in the year 1967 and the said mutation has not been challenged by the plaintiff at any stage including the instant suit. However, the contention does not help the appellants in any manner because mere sanction of mutation is not sufficient to non-suit the plaintiff. The plaintiff has sought declaration in the instant suit that he is owner in possession of the suit land. On grant of said relief to the plaintiff, mutation to the contrary would automatically fall. The mutation was not required to be challenged specifically. In any event mere omission to challenge the mutation is not sufficient to non-suit the plaintiff when he has sought declaration of ownership and possession of the suit land. The said declaration also included the challenge to the mutation in question. Learned counsel for the appellants also contended that appellants through their vendees are in possession of the suit land along with plaintiff and other natural heirs of Hira Devi as recorded in the revenue record and therefore, the plaintiff cannot be said to be in exclusive possession of the suit land. The contention cannot be accepted because even defendants no. 7 and 8 have been recorded in possession of the suit land in the revenue record but defendants no. 7 and 8 have admitted the plaintiff's claim and do not claim themselves to be in possession of any part of the suit land. There is concurrent finding by both the courts below in favour of the plaintiff that he is owner in possession of the suit land. The said finding is supported by cogent and detailed reasons recorded by both the courts below. The said finding does not warrant interference in Regular Second Appeal No. 1226 of 2011 -4- exercise of second appellate jurisdiction because it is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. ( L.N. Mittal ) March 14, 2011 Judge 'dalbir'