R. S. A. No. 25 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 25 of 2011 (O&M) Date of Decision : May 03, 2011 Ram Parshad and others .... Appellants Vs. Bimla Devi and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Surinder Mohan Sharma, Advocate for the applicant-appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5403-C of 2011 : This is application for impleading legal representatives of appellant no.1 Ram Parshad and appellant no.3 Chetan (both since deceased). It is alleged that appellant no.1 Ram Parshad has left behind three sons, a daughter and widow, as mentioned in paragraph 2 of the application, as his only legal heirs, whereas appellant no.3 Chetan has left behind his widow Jyoti only, as mentioned in paragraph 3 of the application, as his only legal heir. It has also been stated that Jyoti has since left the house after her husband's death, and therefore, she be impleaded as R. S. A. No. 25 of 2011 (O&M) 2 proforma respondent no.27. The application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions and persons mentioned in paragraph 2 of the application are ordered to be impleaded as legal representatives of appellant no.1 Ram Parshad (since deceased) for the purpose of this appeal, whereas Jyoti – widow of appellant no.3 Chetan is ordered to be impleaded as legal representative of appellant no.3, but Jyoti be impleaded as proforma respondent no.27. Necessary correction in the `Memo of Parties' be made by the Office. C. M. No. 105-C of 2011 : Allowed as prayed for. Main Appeal : This is second appeal by defendant no.1 and legal representatives of defendant no.2, after the defendants were successful in the trial court, but have been unsuccessful in the lower appellate court. Gullu Ram – plaintiff no.1 (since deceased and represented by respondents no.1 and 2 herein), along with respondents no.3 to 9 as the other plaintiffs, filed suit against the appellants and proforma respondents no.10 to 26 including predecessors of some of them (since deceased). Plaintiffs alleged that Sukh Lal was owner of the suit property. He died before the year 1947 leaving behind four sons i.e. Mohan Lal, Deena Nath, Pyare Lal and Hari Narain and also three daughters. However, since Sukh R. S. A. No. 25 of 2011 (O&M) 3 Lal died before the enforcement of the Hindu Succession Act, 1956, his three daughters did not inherit the suit property and only his four sons inherited the same in equal shares. Pyare Lal son of Sukh Lal died issueless and his share was inherited equally by the remaining three sons of Sukh Lal. Plaintiffs are successors-in-interest of Mohan Lal and Hari Narain, whereas defendants are successors-in-interest of Dina Nath son of Sukh Lal. Accordingly, plaintiffs claimed 2/3rd share in the suit property, remaining 1/3rd being of the defendants. On these averments, the plaintiffs sought partition of the suit property along with injunction. Defendants no.1 and 2 contested the suit and while admitting the relationship between the parties, broadly denied the other plaint allegations. It was pleaded that Chander Parkash was owner of the suit property. He sold the same to Dina Nath – father of the defendants and his two sons Raguver Dayal and Lekh Rai – defendants no.3 and 4 vide registered sale deed dated 09.12.1983. It was denied that Sukh Lal was ever owner of the suit property. It was thus pleaded that plaintiffs have no right, title or interest therein. It was also alleged that plaintiffs are illegally residing in the suit property and have not vacated the same in spite of requests. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ambala Cantt., vide judgment and decree dated 31.10.2008, dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by R. S. A. No. 25 of 2011 (O&M) 4 learned Additional District Judge, Ambala, vide judgment and decree dated 21.07.2010 and thereby, plaintiffs' suit has been decreed and preliminary decree of partition of the suit property has been passed. Feeling aggrieved, defendant no.1 and legal representatives of defendant no.2 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. In order to prove that Sukh Lal – predecessor-in-interest of both the parties was once owner of the suit property, plaintiffs have relied on entries in house-tax Assessment Register and receipts of payment of house-tax issued by the Municipal Committee. In all these documents spreading over several years, Sukh Lal is recorded to be owner of the suit property. It is correct, as also argued by counsel for the appellants, that entries in house-tax record are not documents of title. However, these documents are certainly evidence of ownership of Sukh Lal. In the absence of any rebuttal, these documents coupled with other evidence can certainly be relied on to hold that Sukh Lal was owner of the suit property. Moreover, in the instant case, Ram Parshad – defendant no.1, while appearing as DW-1, candidly admitted that Sukh Lal was owner of the suit property and that plaintiffs are residing in some portion thereof. This admission, coupled with house tax record of the Municipality, proves that Sukh Lal was owner of the suit property. R. S. A. No. 25 of 2011 (O&M) 5 Defendants alleged that Dina Nath – predecessor of defendants, along with defendant no.3 and 4, purchased the suit property from one Chander Parkash vide sale deed dated 09.12.1983. However, defendants have miserably failed to prove the title of their vendor Chander Parkash over the suit property. Consequently, sale deed dated 09.12.1983 could confer no title on Dina Nath and defendants no.3 and 4, when title of their vendor Chander Parkash is not depicted over the suit property. It may be added that during the trial of the suit, defendants came out with a new version that Dina Nath himself had sold the suit property to Chander Parkash in 1980-81 and it was again purchased by Dina Nath along with defendants no.3 and 4 from Chander Parkash vide sale deed dated 09.12.1983. However, the sale deed vide which Dina Nath sold the suit property to Chander Parkash, has not seen the light of the day. In addition to it, there is no evidence to depict that Dina Nath was ever exclusive owner of the suit property. It is thus manifest that Chander Parkash, from whom Dina Nath and defendants no.3 and 4 claimed to have purchased the suit property, did not have title over the suit property and so, he could not have passed any title in favour of Dina Nath and defendants no.3 and 4. Defendant no.1 – Ram Parshad stated that plaintiffs were initially inducted as tenants in part of the suit property. However, he was not even able to tell the year when the plaintiffs were so inducted as tenants. R. S. A. No. 25 of 2011 (O&M) 6 There is also no document to depict the same. On the contrary, in the written statement in the instant suit, it was pleaded that plaintiffs are in illegal possession of part of the suit property. Thus, stand of defendants regarding capacity of the plaintiffs, in which they are in possession of part of the suit property, is completely contradictory and unreliable. It would also lead to the inference that plaintiffs are in possession of part of the suit property in their own right being co-shares therein. Finding of the lower appellate court in favour of plaintiff is justified by the evidence on record including admission of defendant no.1 himself in the witness-box. The said finding is not depicted to be perverse or illegal nor it is based on misreading or misappreciation of evidence and therefore, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine. May 03, 2011 ( L. N. MITTAL ) monika JUDGE