R.S.A. No.1051 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1051 of 2007 (O&M) Date of decision : 10.2.2009 Phulkanwar alias Pappu and others ....Appellants Versus Raj Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Vishal Garg, Advocate for the appellants. ..... MAHESH GROVER, J. Delay in re-filing is condoned. This appeal is directed against the judgment of the first Appellate Court dated 26.9.2006. The plaintiff/respondent Raj Singh filed a suit pleading that he is a co-sharer in possession of the land measuring 162 kanals to the extent of ½ share situated in village Kakroi, fully detailed in the suit. It was pleaded that earlier this land was owned and possessed by Suraj Mal, Jugti and Ram Dhan sons of Prithi to the extent of 1/3 share, Sube Singh 1/3 share and Nando widow of Dhara 1/3 share in equal proportions. A pedigree table was also relied upon to say that one Gordhan had three sons, namely Pirthi, Sube Singh and Dhara. Sube Singh was married to Baldevi and had two sons from her, R.S.A. No.1051 of 2007 (O&M) -2- namely Raghbir Singh and Inder Singh. Baldevi died in the year 1968 and Sube Singh contracted a Karewa marriage with Nando wife of Dhara who had renounced the world prior thereto. Raj Singh plaintiff/respondent was born to Sube Singh from his second wife Nando. Pirthi, who was the eldest son of Gordhan died and his 1/3rd share in the land was inherited by his three sons. Suraj Mal transferred his share in favour of Omdevi, who was arrayed as respondent No.3. Similarly Jugti and Ram Dhan also transferred some share out of their property in favour of defendants No.6 and 7, who were their wives, respectively. In the estate of Gordhan, Dhara was supposed to be having 1/3 share which was inherited by his widow Nando. Later on Nando married Sube Singh. Sube Singh also died after 10 years of the death of Baldevi. It was pleaded that the the plaintiff/respondent was entitled to ½ share of the property being the successor of Sube Singh and Nando. The mutation allegedly entered on 17.9.1971, which was on the basis of a decree of 1996 between Pirthi and his sons, Sube Singh and Nando was the result of collusion and was also challenged. It was pleaded that by virtue of the said decree and the consequent transfer ½ share out of 1/3 share of Nando was transferred favour of Suraj Mal, Jugti and Ram Dhan sons of Pirthi and the remaining ½ share in favour of Sube Singh. After the death of Nando on 23.1.1994, and Sube Singh, who was co-sharer in possession of 1/3 share, the property ought to have come to the share of the plaintiff. With these averments a decree for declaration with a consequential prayer of injunction was prayed. The appellants contested the suit and disputed the facts of R.S.A. No.1051 of 2007 (O&M) -3- the case. It was admitted that Nando wife of Dhara performed Karewa marriage with Sube Singh as per the custom and during this time the property of her first husband came to the shares of his two brothers to the extent of ½ share each. Date of birth of Pirthi was also disputed. It was also disputed that after the death of first husband of Nando, plaintiff/respondent Raj Singh became owner of 1/3rd share of her husband's entire property. The decree and the consequent transfer was stated to be valid and legal. Both the parties went to trial on the following issues :- 1. Whether the plaintiff is co-owner in possession of ½ share in the suit land?OPP 2. If issue No.1 is proved, to what share plaintiff is entitled in the suit land?OPP 3. Whether the defendants have become owner of the suit land by way of adverse possession?OPD 4. Whether Dhare son of Gordhan died in the year 1932 and Nando contracted Karewa marriage with Sube Singh soon thereafter and she forfeited her right in the property of her husband as per custom?OPD 5. Whether the plaintiff has no locus standi to file the present suit?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit is time barred?OPD 8. Whether the plaintiff is estopped by his own act and R.S.A. No.1051 of 2007 (O&M) -4- conduct from filing the present suit?OPD 9. Whether the suit is bad for mis-joinder and non- joinder of necessary parties?OPD 10. Whether the plaintiff has no cause of action to file the present suit?OPD 11. Whether the mutation No.1913 sanctioned on 6.9.1966 is illegal and void?OPD 12. Relief. The learned trial Court came to the conclusion that the plaintiff/respondent has failed to prove his case and dismissed his suit in toto. Issues No.1,2 and 4, which were tried together, were held against the plaintiff/respondent. In appeal, the findings of the learned trial Court on the decree of 1996 were upheld but the first Appellate Court came to the conclusion that the plaintiff/respondent was entitled to 1/4th share of the property and granted him declaration to that effect. Learned counsel for the appellants has assailed the aforesaid findings to contend that they are perverse and warrant interference by this Court and that this was never the case of the plaintiff that he was owner to that extent and therefore the decree passed by the first Appellate Court is contrary to the pleadings. After hearing the learned counsel for the appellants and perusing the impugned judgment, I am of the opinion that the present appeal deserves to be dismissed. Two issues were categorically framed by the Courts below which are to the following effect : “1. Whether the plaintiff is co-owner in possession of ½ R.S.A. No.1051 of 2007 (O&M) -5- share in the suit land?OPP 2. If issue No.1 is proved, to what share plaintiff is entitled in the suit land?OPP” The issues were wide enough to contain in their ambit the claim of the plaintiff/respondent. That apart, it was the case of the plaintiff that he was entitled to the half share of the property. The first Appellate Court after assessing the evidence concluded to the contrary and also held that the plaintiff/respondent was entitled to a lesser share in the property. The first Appellate Court has concluded that after the death of Sube Singh his property was inherited by his four legal heirs as per the provisions of the Indian Succession Act. Nando, as per showing of the appellants themselves, had performed a Kareva marriage with Sube Singh after his first wife Baldevi had died. Nando, the second wife thereafter became entitled to inherit 1/8th share in the entire property i.e. 1/4th out of 1/2share of Sube. It was also noted that both the parties admitted that plaintiff/respondent Raj Singh is the real son of Nando as he was born to Sube Singh. Therefore, after Nando died her share would naturally devolve upon his real son i.e. Raj Singh. Raj Singh had earlier inherited 1/8th share from the estate of Sube Singh and when the estate of Nando devolved upon him he would naturally become entitled to 1/4th share. In this view of the matter, the findings recorded by the first Appellate Court cannot be termed to be perverse so as to warrant any interference in the regular second appeal. No substantial question of law has been shown to have arisen in the present appeal which being devoid of any merit is R.S.A. No.1051 of 2007 (O&M) -6- dismissed. 10.2.2009 (MAHESH GROVER) JUDGE dss