RSA No.4520 of 2010 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4520 of 2010 Date of decision: July 21, 2011. Madan Singh ... Appellant(s) v. Nakli & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Ashish Aggarwal, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. CM No.13455-C of 2010 Exemption allowed, as prayed. CM No.13456-C of 2010 For the reasons stated in the application, the same is allowed and the delay of 46 days in re-filing the appeal is condoned. RSA No.4520 of 2010 Having failed in two rounds of litigation, plaintiff has approached this Court by filing the present regular second appeal. Plaintiff- appellant Madan Singh, defendant-respondent No.1 – Nakli and defendant- respondent No.2 – Tejpal are brothers, being sons of Jamadar Singh, whereas defendant-respondents No.3 to 5 are sons of Tejpal and hence nephews of plaintiff. Appellant-plaintiff filed a suit for declaration praying that the civil court decree dated 29.4.1988 passed in Civil Suit No.178 of 1988 titled as “Nakli v. Jamadar” and subsequent mutation on the basis RSA No.4520 of 2010 -: 2 :- thereof be set aside. Appellant-plaintiff had further prayed that civil court decree dated 21.12.1987 in Civil Suit No.533 of 1987 titled as “Tejpal v. Jamadar” along with subsequent mutation No.733 and civil court decree dated 26.2.1988 in Civil Suit No.100 of 1988 titled as “Ram Pal & Ors. v. Zamadar” passed by the court of the then Sub Judge Second Class, Karnal along with subsequent mutation No.692 be held illegal, null and void, ineffective, inoperative and not binding upon the plaintiff-appellant. He had further prayed that he be held as owner in possession as per his share in the estate of Shri Zamadar under the provisions of the Hindu Succession Act. It was pleaded in the suit that defendants No.1 and 2, Nakli and Tejpal constituted a Joint Hindu family with their father Zamadar. Plaintiff was also one of the co-parcener and the suit land was never partitioned by meets and bounds between defendants No.1 and 2 during the life time of Zamadar. Thus, the suit land was cultivated by plaintiff and defendants No.1 and 2 jointly and they were in joint possession of the same. A grievance was set out in the plaint that defendants No.1 and 2 and defendants No.3 to 5, on the basis of the civil court decrees had started claiming themselves to be owners in possession. These decrees were suffered by Zamadar in their favour and the same were assailed by the plaintiff on the ground that they were the result of fraud played upon Zamadar and Zamadar at the relevant time was an old person, aged more than 80 years and was not medically fit. The defendants had exploited the fiduciary relationship. The decrees are liable to be ignored as nothing was mentioned about these decrees in the Will executed by Zamadar on 3.8.1994. It was pleaded that defendants might have procured thumb impression of Zamadar; he never appeared in any court nor engaged any Counsel, therefore, no written statement was RSA No.4520 of 2010 -: 3 :- filed and therefore, he was impersonated. Upon notice, defendants No.2 to 5 appeared, filed their joint written statement and denied the averments made in the plaint. They further stated that the appellant-plaintiff had not approached the court with clean hands. He had not disclosed that decree dated 21.12.1987 was challenged by the plaintiff by filing Suit No.484 of 1992 and the said suit was dismissed by the court of the then Additional Senior Sub-Judge, Karnal vide judgment and decree dated 14.12.1992. Appeal preferred by the plaintiff was also dismissed on 26.4.2003 by the court of Additional District Judge, Karnal. Furthermore, appellant-plaintiff had filed a suit for permanent injunction against defendants No.2 to 5 which was also dismissed on 11.4.2001 by the court of Additional Civil Judge (Senior Division), Karnal. The trial court held that the plaintiff has failed to prove that the suit property was ancestral. The court held that, “Plaintiff has not placed on file any Jamabandi or relevant record to prove the fact that entire property mentioned in the plaint and other property of Jamadar was ancestral as the same was inherited by Jamadar from his father”. The court further held that mere oral statement of Madan Singh PW1 and Nakli PW2 is not sufficient to prove the nature of the suit property. The court further held that the decrees in question were suffered by Zamadar of his own free will and no fraud was played upon Zamadar. The court further held as under:- “23. ... Jamadar distributed his entire property in almost equal share in favour of all the three sons and he has kept one share for himself. All decrees in question were already in the knowledge of the plaintiff. Plaintiff failed to prove the fact that decrees in question are illegal, null and void and therefore issue RSA No.4520 of 2010 -: 4 :- No.1 is decided against the plaintiff.” In view of the findings given above, the suit of the plaintiff was dismissed. The lower appellate court, while affirming the findings returned by the trial court, dismissed the first appeal filed by the present appellant. Shri Ashish Aggarwal, Counsel appearing for the appellant, could not be able to deny that the land was equally distributed between the three sons, i.e., defendant No.1 and 2 and plaintiff and Zamadar had retained one share of the land for himself. Counsel has also not denied that earlier also, plaintiff had challenged the decree dated 21.12.1987. The Courts below had appreciated the testimony of witnesses and have held that due to lack of documentary evidence, it is not safe to rely upon the testimony of PW1 – plaintiff-appellant and Nakli PW2 – defendant No.1 to the suit. Furthermore, the courts have held that no evidence is coming forward that any fraud was played upon Zamadar in obtaining decrees in question. Thus, concurrent findings of fact given after appreciation of evidence cannot be disturbed in regular second appeal unless any substantial question of law is attracted. After giving due consideration to the averments made by Counsel for the appellant, this Court is of the view that no question of law, much less a substantial one, arises for consideration of this Court. Hence, no interference is warranted and the present regular second appeal is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 21, 2011. Judge kadyan