R. S. A. No. 839 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 839 of 2010 Date of Decision : February 22, 2010 Lakha Singh and another .... Appellants Vs. Tehal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ajay Pal Singh, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs no.1 and 2 only, having remained unsuccessful in both the courts below. Suit was filed by appellants and proforma respondents no.13 and 14 against respondents no.1 to 12. The plaintiffs alleged that Gurdial Singh, who was impleaded as defendant no.12, was presumed to have died as he had not been heard of for more than seven years before the filing of the suit. The plaintiffs accordingly claimed that they have inherited half share in the property of Gurdial Singh being sons and daughters of Amrik Singh – brother of Gurdial Singh, whereas the other half share in the property of Gurdial Singh devolved upon defendants no.1, 9 and 10 being son and daughters of another brother of Gurdial Singh namely Inder Singh. Defendants, however, pleaded that Gurdial Singh had suffered a decree dated 28.04.1987 in favour of defendant no.11 and since then, defendant R. S. A. No. 839 of 2010 2 no.11 is owner in possession of the suit property left by Gurdial Singh. Learned Additional Civil Judge (Senior Division), Malerkotla, vide judgment and decree dated 16.02.2006, dismissed the suit filed by the plaintiffs. First appeal preferred by plaintiffs no.1 and 2 only has been dismissed by learned Additional District Judge, Sangrur, vide judgment and decree dated 12.10.2009. Feeling aggrieved, the instant appeal has been preferred by plaintiffs no.1 and 2. I have heard learned counsel for the appellants and perused the case file. The plaintiffs in the suit have not challenged the decree dated 28.04.1987 suffered by Gurdial Singh in favour of defendant no.11. Consequently, so long the said judgment and decree are in existence, the plaintiffs cannot succeed. To overcome this difficulty, learned counsel for the appellants vehemently contended that the plaintiffs were not aware of the said judgment and decree. The contention cannot be accepted. The said judgment and decree were incorporated in the revenue record and therefore, the plaintiffs cannot plead ignorance thereof. In addition thereto, the said judgment and decree were pleaded in the written statement in the instant suit, but inspite thereof, the plaintiffs did not challenge the same. Vide judgment and decree dated 28.04.1987, defendant no.11 Sukhjinder Pal Singh has been declared to be owner in possession of the suit property, which was previously owned and possessed by Gurdial Singh. Consequently, even if it is presumed that Gurdial Singh had died, having not been heard of for more than seven years, even then the plaintiffs cannot inherit any share in the suit property because defendant no.11 already stood declared to be owner in possession of the suit property. Learned counsel for the appellants contended that the judgment and decree dated 28.04.1987 are unregistered and therefore, could not confer any title on defendant no.11. This contention cannot be accepted in the absence of pleadings and evidence. Only on the basis of pleadings and R. S. A. No. 839 of 2010 3 evidence, it could be concluded whether the judgment and decree required compulsory registration or not. Learned counsel for the appellants also contended that no issue was framed regarding the plea that Gurdial Singh had not been heard of for more than seven years and was, therefore, presumed to have died. However, this contention also does not help the appellants because this question is covered by issues no.1 to 3. Moreover, the parties have led their evidence on this question and therefore, non-framing of any specific issue has not caused any prejudice to the appellants. There is concurrent finding by both the courts below against the plaintiffs. The said finding is based on appreciation of evidence and is now shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. February 22, 2010 ( L. N. MITTAL ) monika JUDGE