Regular Second Appeal No.1736 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.1736 of 2009 Date of decision: 07.08.2009 1. Maman, 2. Fakir Chand, sons of Mohan Lal, 3. Smt. Samoti widow of Bala Ram, 4. Inder, 5. Tirlok, 6. Toli, 7. Sewa Ram, 8. Dimpal, 9. Deenu and 10. Monu, sons of Bala Ram son of Mohan Lal, residents of Khasapura, Rewari. ..... Appellants. Versus Kharti Lal son of Mohan Lal, resident of Mohhalla Khasapura, Rewari. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rajesh Lamba, Advocate for the appellants. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree Regular Second Appeal No.1736 of 2009 -2- dated 06.01.2007, rendered by the Court of Additional Civil Judge (Senior Division), Rewari, vide which it decreed the suit of the plaintiff (now respondent)and the judgment and decree dated 17.11.2008, rendered by the Court of Additional District Judge, Rewari, vide which it modified the judgment and decree dated 06.01.2007, rendered by the trial Court to the extent that a preliminary decree for possession by way of partition was passed. 2. The facts, in brief, are that the plaintiff (now respondent) claimed that his father was the owner in possession of the property, fully detailed in para no.1 of the plaint, shown by letters ABCD in red colour, in the site plan, situated within the Abadi of Mohalla Khaspura, Rewari, by virtue of a registered sale deed dated 10.03.1964. It was stated that, during his life time, the father of the plaintiff had given him, his brothers (defendant nos. 1 and 2) and legal heirs of his deceased Regular Second Appeal No.1736 of 2009 -3- brother Bala Ram,the suit property in equal shares, in an oral family settlement. It was further stated that since then the parties have been continuing as joint owners and in joint possession of the suit property. Bala Ram has since demised. The plaintiff claimed that he was having 1/4 share, whereas, defendant nos. 1 and 2 have got 1/4 share each and defendant nos. 2 to 10 were having the remaining 1/4 share. It was stated that there always remained a dispute and, as such, it was not possible to enjoy the property, if the same remained joint. It was further stated that the defendants were asked many a time, to get the property partitioned, by metes and bounds, but to no avail. On their final refusal to accede to the request of the plaintiff, left with no alternative, a suit for possession by way of partition, was filed. 3. Defendant nos.3,5,6 and 7, put in appearance, and contested the suit, by Regular Second Appeal No.1736 of 2009 -4- way of filing joint written statement, wherein, it was pleaded that the suit was not maintainable; that the plaintiff had no locus standi to file the suit; that the suit was not properly valued for the purpose of Court fee; and that the suit was barred by limitation. It was stated that the suit property bears house tax No.5932-A and the plaintiff has got no right, title or interest therein. In fact, Mohan Lal, the grand-father of defendant nos. 5 to 10, had verbally given the property to defendant nos. 3 to 10 and, as such, they were the owners thereof. It was further stated that the plaintiff has been residing separately for the last 40 years and has not used the property, in dispute, in any manner. It was further stated that the contesting defendants, had constructed three rooms, one tin-shed, one tank, one toilet and a bathroom, in the suit property. It was further stated that the total area of the suit property was Regular Second Appeal No.1736 of 2009 -5- 114 square yards, whereas, the area of the property, mentioned by the plaintiff, and shown in the sale deed, was only 89 square yards. The remaining averments, contained in the plaint, were denied, being wrong. 3-A. No separate written statement was filed by defendant nos. 1 and 2. 4. From the pleadings of the parties, the following issues, were struck by the trial Court :- “1- Whether the plaintiff has got ¼ share in the suit property, if so to what effect ?OPP 2- Whether the plaintiff is entitled to injunction as prayed for ?OPP 3- Whether the plaintiff has no locus standi to file the present suit ? OPD 4- Whether the suit of the plaintiff is not maintainable in the present form ?OPD 5- Whether the suit of the plaintiff Regular Second Appeal No.1736 of 2009 -6- is time barred ?OPD 6- Whether the suit of the plaintiff is not properly valued for the Court fee ?OPD 7- Relief.” 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court decreed the suit. 6. Feeling aggrieved, an appeal was preferred by the defendants, which was modified to the extent, referred to above, by the court of Additional District Judge, Rewari, vide its judgment and decree dated 17.11.2008. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellants/defendants. 8. I have heard the Counsel for the appellants, and have gone through the documents on record, carefully. Regular Second Appeal No.1736 of 2009 -7- 9. The Counsel for the appellants submitted that the Courts below misread and mis-appreciated the evidence and, thus, recorded a perverse finding that the property in respect whereof the partition was sought was the same, as was depicted in the sale deed dated 10.03.1964. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no Regular Second Appeal No.1736 of 2009 -8- jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The property, in dispute, was purchased, vide sale deed Ex.PW1/2 dated 10.03.1964, by Mohan Lal, for a sale consideration of Rs.500/- from Ram Chander son of Shadi Lal. Ex.PW1/3 is the site plan showing the dimensions and the area purchased by the father of the plaintiff, vide the aforesaid sale deed. The execution of the sale deed as is evident from the judgments of the Courts below, was proved by Vijay Kumar, Deed Writer, Regular Second Appeal No.1736 of 2009 -9- Rewari, who appeared as PW-3. Even the execution thereof was not denied by the contesting defendants. No doubt, the defendants took up the plea that the property, in dispute, was purchased by Bala Ram son of Mohan Lal and the house tax assessment record existed in his name. However, such contention of the defendants was rejected by the First Appellate Court, as no such plea was taken up in the written statement. The first Appellate Court was also right in holding that the boundaries of the property, in dispute, tally with the boundaries mentioned in the site plan Ex.PW1/3, annexed with the sale deed. The concurrent findings of facts, recorded by the Courts below, that the property, in dispute, was purchased by Mohan Lal, predecessor-in- interest of the parties; that the parties were joint owners in joint possession of the same; that the plaintiff was having ¼ share in the suit property and was Regular Second Appeal No.1736 of 2009 -10- entitled to separate possession by partition thereof by metes and bounds, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) August 07, 2009 Judge dinesh