IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.445 of 2010 Date of Decision : 30 th May, 2011 Chandan Singh & another ….Appellants Versus Roop Chand & others ….Respondents CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT : Mr. Brijender Kaushik, Advocate for the appellants. * * * * * L. N. Mittal, J. (Oral) Chandan Singh and Sajjan Singh both sons and legal representatives of Ram Chander plaintiff No.2 since deceased have filed the instant second appeal after being successful in the trial court but having been non-suited by the lower appellate court. Suit was filed by Manohar Lal plaintiff No.1/respondent No.3 along with Ram Chander plaintiff No.2 (represented by the appellants) against Sumer Singh defendant No.1/respondent No.2 and Roop Chand defendant No.2/respondent No.1. Both plaintiff and defendant No.1 are sons of Har Lal. Plaintiffs’ case is that both plaintiffs and defendant No.1 had 1/4th share each in the disputed Nohra. However defendant No.1 has sold the entire Nohra to defendant No.2 vide sale deed dated 11.10.1999. The RSA No.445 of 2010 plaintiffs sought declaration that they are owners in possession of half share of the disputed Nohra and that the aforesaid sale deed is illegal and null and void and is not binding on the plaintiffs. Defendant No.1 was preceded ex parte. Defendant No.2 contested the suit and pleaded that defendant No.1 was absolute owner in possession of the suit property and therefore, he rightly sold the suit property to defendant No.2 who is now owner in possession thereof. It was also alleged that there was family partition among plaintiffs and defendant No.1 about 50 years ago and in that partition, the suit Nohra fell to the share of defendant No.1 and since then he was owner in possession thereof. In family partition, plaintiff No.1 got house No.95 and plaintiff No.2 got house No.165. Learned Additional Civil Judge (Senior Division), Charkhi Dadri vide judgment and decree dated 11.09.2007 decreed the plaintiffs’ suit and declared the impugned sale deed to be legal and valid only qua 1/4th share of defendant No.1 and set aside the same regarding remaining share in the suit property. However, first appeal preferred by defendant No.2 has been allowed by learned District Judge, Bhiwani vide judgment and decree dated 13.06.2009 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, legal representatives of plaintiff No.2 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. -2- RSA No.445 of 2010 Plaintiffs claimed 1/4th share each in the suit property on the premise that their father Har Lal was owner of the property and he had four sons who inherited the suit property equally i.e. 1/4th share each. However, the plaintiffs did not specifically plead that Har Lal was owner of the suit property. Moreover, Chandan Singh appellant No.1 while appearing as PW-1 (as attorney of plaintiff No.2) stated that Har Lal had four sons and five daughters. Accordingly the share of plaintiffs would have been 1/9th each and not 1/4th each as claimed by them. However, as already noticed hereinabove, plaintiffs have not even pleaded that Har Lal was owner of the suit property. There is also no cogent evidence to depict that Har Lal was owner of the suit property. From the plea of the defendant No.2 that there was mutual partition among plaintiffs and defendant No.1, counsel for the appellants tried to draw inference that Har Lal was admitted to be owner of the property. However, no such inference can be drawn from aforesaid plea of defendant No.2. Learned counsel for the appellants contended that defendant No.2 has failed to prove aforesaid partition. The contention cannot be accepted. Appellant No.1while appearing in the witness box admitted in cross-examination that during partition, house situated in old residential area fell to the share of his father. This admission made by appellant No.1 himself corroborates the version of defendant No.2 regarding mutual partition. Plaintiffs have not produced any cogent evidence to depict that they have any share in the suit property and if so, how much. In addition to it, fourth brother of the plaintiffs or their sisters have not challenged the -3- RSA No.445 of 2010 impugned sale deed although if plaintiffs’ version were to be accepted, share of their brother and sisters in the suit property would also be adversely affected. This circumstance would also point towards the partition pleaded by defendant No.2. In addition to it, appellant No.1 also admitted that defendant No.2 is in possession of the suit property since the date of purchase by him. Obviously defendant No.2 derived possession of the suit property from defendant No.1 under the impugned sale deed. Thus prior to the sale deed, defendant No.1 was in exclusive possession of the suit property. This material fact would also point towards partition pleaded by defendant No.1 according to which defendant No.1 was exclusive owner in possession of the suit property. It is also worth mentioning that plaintiffs simply filed suit for declaration and have not claimed relief of possession or joint possession of the suit property. However admittedly defendant No.2 is in exclusive possession of the suit property. Consequently suit for declaration alone is not maintainable in view of mandatory provision of the proviso to Section 34 of the Specific Relief Act, 1963 which stipulates that the court shall not grant relief of declaration where plaintiff being able to seek further relief than mere declaration of title, omits to do so. Consequently the suit for declaration alone is not maintainable and plaintiffs have to be non-suited for this added reason as well. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the lower appellate court to non- suit the plaintiffs is based on appreciation of evidence and does not suffer -4- RSA No.445 of 2010 from illegality or perversity. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. It is a pure finding of fact and lower appellate court is the final court of fact. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 30th May, 2011 ‘raj’ -5-