R. S. A. No. 709 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 709 of 2011 (O&M) Date of Decision : February 09, 2011 Om Parkash and another .... Appellants Vs. Surjan and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. N. P. S. Mann, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 1920-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 14 days in filing the appeal is condoned. Main Appeal : Defendants no.4 and 5, having failed in both the courts below, have come up by way of instant second appeal. Suit was filed by Surjan – plaintiff/respondent no.1 and by Shadi Ram - plaintiff no.2 (since deceased and represented by respondents no.2 to 8) against Ratni Devi – defendant no.1 (since deceased and R. S. A. No. 709 of 2011 (O&M) 2 represented by respondents no.9 to 20), Joginder Ram – defendant no.2/respondent no.9, Nirmala Devi – defendant no.3/respondent no.12 and both the appellants as defendants no.4 and 5. Parmeshwaria – common ancestor of plaintiffs and defendants no.1 to 3 was owner in possession of suit land measuring 05 marlas. He had three sons. Plaintiff no.1 is son of Bachna son of Parmeshwaria, plaintiff no.2 was son of Parmeshwaria, third son was Dayal Ram, whose widow, a son and a daughter were impleaded as defendants no.1 to 3. Plaintiffs got 1/3rd share each, whereas defendants no.1 to 3, as heirs of Dayal Ram, got 1/3rd share in the suit land, which is a barra. Inheritance mutation no.4674 of Parmeshwaria was accordingly sanctioned. However, after consolidation of holdings, metalled road was constructed leading to Village Manakpur. Some portion of the disputed barra had been included in the said road. Consequently, remaining portion of the barra is less than five marlas, as depicted in site plan by letters ABCD. Defendants no.1 to 3 sold 1/3rd share of five marlas of the disputed barra to defendants no.4 and 5 and mutation no.4676 has been sanctioned. However, total area of the barra at the spot is not five marlas. Defendants no.4 and 5, therefore, cannot claim 1/3rd of five marlas. They can claim 1/3rd share of existing area. Defendants no.4 and 5 also wanted to raise construction on the portion abutting the passage. Accordingly, plaintiffs sought separate possession of their share by partition of the suit property. R. S. A. No. 709 of 2011 (O&M) 3 Defendants contested the suit. It was admitted that Parmeshwaria was owner of the suit land. However, it was pleaded that about 14 years ago, family settlement was arrived at between plaintiffs and Dayal Ram (represented by defendants no.1 to 3 in the trial court), whereby specific portion, as described in the written statement and specified in the plan attached to the written statement, fell to the share of Dayal Ram. Said oral family settlement was accompanied by delivery of possession. Dayal Ram remained in exclusive possession of the said property, which was sold by his legal heirs defendants no.1 to 3 after his death, to defendants no.4 and 5 vide registered sale deed dated 29.10.2001. Since then, defendants no.4 and 5 are exclusive owners in possession thereof. Plaintiffs have no right, title or interest therein. Various other pleas were also raised. Learned Civil Judge (Junior Division), Rajpura, vide judgment and decree dated 29.04.2008, decreed the plaintiffs' suit holding that both the plaintiffs are entitled to 1/3rd share each in the suit property. First appeal preferred by defendants no.4 and 5 has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 06.10.2010. Feeling aggrieved, defendants no.4 and 5 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. It is undisputed that Parmeshwaria was owner of the suit R. S. A. No. 709 of 2011 (O&M) 4 property and the same was succeeded by his three heirs in equal shares i.e. 1/3rd share each. Consequently, both plaintiffs have 1/3rd share each in the suit property and Dayal Ram – predecessor of defendants no.1 to 3 also had 1/3rd share in the suit property. Claim of appellants is based on alleged oral family settlement. However, the defendants have miserably failed to prove oral family settlement. According to the defendants, the said family settlement took place 14 years before the filing of the written statement. However, jamabandi continues to depict the parties to be joint owners in possession of the suit property. The alleged mutual partition was never incorporated in revenue record. Presumption attached to entry in jamabandi that the suit property is still joint has not been rebutted by the defendants. No cogent evidence has been led to prove the alleged oral family settlement. Defendant no.4 Om Parkash, appearing as DW-4, stated about the alleged family settlement. However, he was not even in picture at the time of alleged family settlement and he admitted in cross-examination that he was not present at the time of oral partition. Accordingly, testimony of Om Parkash (DW-4) carries no probative value to prove alleged oral partition or settlement. Only DW-3 Tara Singh has stated about the alleged family settlement being present at that time. However, testimony of Tara Singh has been discarded by both the courts below. He could not give complete details of alleged oral partition. He was not even aware of the date, month or year when the alleged family partition took place. R. S. A. No. 709 of 2011 (O&M) 5 In addition to the aforesaid, defendants no.1 to 3, who were the material witnesses to prove the alleged oral family settlement or partition, have not stepped into the witness-box. Consequently, adverse presumption arises against the defendants. There is concurrent finding by both the courts below negativing the alleged family settlement. The said finding is based on proper appreciation of evidence on record and is supported by cogent reasons. The said finding, therefore, does not warrant interference in second appeal as it is not shown to be perverse or illegal in any manner. The said finding is a finding of fact and the lower appellate court is the final court of fact. The said finding is not shown to be 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. Accordingly, the appeal is dismissed in limine being devoid of any merit. February 09, 2011 ( L. N. MITTAL ) monika JUDGE