R.S.A.No.3393 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3393 of 2010(O&M) Date of Decision:15.07.2011 Roop Gir and another ......Appellants Versus Savitri Gir .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Vikas Singh, Advocate, for the appellants. **** M EHINDER S INGH S ULLAR , J.(oral) The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record is, that Savitri Gir daughter of Pissu Gir son of Nikku Gir-respondent-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration to the effect that she is owner to the extent of 1/6th share in the agricultural land of Khewat Khatauni No.219/529 to 532, comprising Khasra Nos.776(5-18), 777(6-3), 767 (2-0), 778(4-1), 766(7-1), 1776/767(2-5), to the extent of ½ share out of Gair Mumkin Abadi, of Khatauni No.219/528, comprising Khasra Nos.915(0-6), 950 (0-2), 951(0-2) i.e., 0-5 Biswas, for possession of the land measuring 4 Bighas 1 Biswa in Khewat No.219, Khatauni No.531, comprising Khasra No.778(4-1) i.e., 4 Bighas 1 Biswa and 0-5 Biswa of Gair Mumkin Abadi, situated in village Bhanra, Tehsil and District Patiala, with a consequential relief of mandatory and permanent injunction, restraining Raj Gir son of Pissu Gir-defendant No.1(since deceased) (now being represented through his LRs) and his sons Roop Gir and Basant Gir- appellant-defendant Nos.2 and 3(for brevity “the defendants”) from interfering, in any manner, in her peaceful possession over the indicated land in dispute, inter R.S.A.No.3393 of 2010(O&M) 2 alia, pleading that she is owner of the property in dispute, but the defendants illegally intend to usurp her property, without any legal right. On the basis of her title, the plaintiff filed the suit against the defendants on the basis of her title, in the manner depicted hereinabove. 2. The defendants contested the suit and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. They have denied the ownership and possession of the plaintiff over the property in dispute. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the controversy, as depicted in its judgment and the case was slated for evidence of the plaintiff. 4. The parties to the lis in order to substantiate their respective stands, brought on record oral as well as the documentary evidence. 5. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, decreed the suit of the plaintiff by way of impugned judgment and decree dated 19.12.2003. 6. Aggrieved by the decision of the trial Court, the appellant-defendant Nos.2 and 3 filed the appeal, which was dismissed as well by the first Appellate Court by virtue of impugned judgment and decree dated 28.01.2010. 7. Appellant-defendant Nos.2 and 3 still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 8. After hearing the learned counsel for the appellant-defendant Nos.2 and 3, going through the record with his valuable assistance and after deep R.S.A.No.3393 of 2010(O&M) 3 consideration of the entire matter, to my mind, there is no merit in the appeal in this respect. 9. Ex facie, the argument of the learned counsel that, since it is not proved on record that the plaintiff is owner of the property in dispute, so, the Courts below committed a legal mistake in decreeing her suit, sans merit. 10. As is evident from the record that, Basanti, Chetan Gir and Pissu Gir were the owners in the land in dispute to the extent of 1/3rd share each, out of the total land. Plaintiff-Savitri Gir is the daughter of Pissu Gir son of Nikku Gir, while Raj Gir-defendant No.1 is her brother and appellant-defendant Nos.2 and 3 are her nephews. Chetan Gir executed a registered Will of his movable and immovable property bearing Vasika No.85 dated 03.09.1975 in favour of the plaintiff. The entry of the registered Will is entered and described in column No.13 of mutation No.1342(Ex.PD)(Ex.D1). Chetan Gir expired on 13.03.1978, which is clear from the death certificate(Ex.PR). 11. Meaning thereby, after the death of Chetan Gir, the plaintiff became the owner and in possession of the suit property by way of registered Will, duly implemented in the mutation(Ex.PD)(Ex.D1). 12. The trial Court, on ultimate analysis of the evidence produced on record by the parties, has categorically held that the plaintiff is proved to be owner and in possession of the property in dispute. Not only that, the judgment and decree of the trial Court were upheld by the first Appellate Court, by means of impugned judgment and decree dated 28.01.2010, the operative part of which is, as under:- “The perusal of the document Ex.D1, mutation No.1342 shows that the inheritance of Chetan Gir has been sanctioned in favour of the plaintiff/respondent on the basis of the Will. So, after the death of Chetan Gir, his share i.e. 1/6th goes to Savitri Gir. Raj Gir was also entitled to 1/6th share of mortgaged land and not more than that. Savitri Gir is the daughter of Pissu Gir. The defendants have no right to inherit the property of Chetan Gir. In the jamabandi for the year 1989-90, Ex.PS, Savitri Gir R.S.A.No.3393 of 2010(O&M) 4 has been shown owner of 1/3rd share which she sold to Devki i.e. 9K-6M. Savitri Gir is entitled to ½ share out of “gair mumkin abadi” and “ruri” measuring 5 Biswas out of total “takk” of 10 Biswas. So Savitri Gir is entitled by way of declaration, owner of 4 Biswa 18 Bighas. So the lower court has rightly held that the plaintiff/respondent is entitled to the declaration, as prayed for and it has also been rightly held that the plaintiff/respondent is entitled to the injunction as prayed for. The lower court has also rightly decided the issues in favour of the respondent/plaintiff and against the appellants/defendants.” 13. No other meaningful argument has been raised by the learned counsel for the appellant-defendants, to assail the findings of the Courts below. All the remaining contentions, relatable to the appreciation of evidence, now sought to be urged on their behalf, have already been duly considered and dealt with by the Courts below, in this relevant behalf. 14. Moreover, having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded a concurrent finding of fact that the plaintiff is proved to be owner in possession of the property in dispute and the defendants have got no right, title or interest in it. Such judgments, containing the valid reasons, cannot possibly be interfered with by this Court, 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 appellants, so as to take a contrary view, than that of the well-articulated decision arrived at by the Courts below, in this context. 15. Meaning thereby, 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, much less substantial, is involved in this regular second appeal, in view of the law laid down by the Hon'ble Apex Court in case Kashmir Singh Versus Harnam Singh and another, 2008(2) R.C.R.(Civil) 688: 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments and decrees of the Courts R.S.A.No.3393 of 2010(O&M) 5 below, as contemplated under Section 100 CPC, in the obtaining circumstances of the case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 17. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 15, 2011 (MEHINDER SINGH SULLAR) seema JUDGE