RSA No.4630 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4630 of 2009(O&M) Date of decision: 29.1.2010 Sudarshan Kumar and another ......Appellant(s) Versus Om Dutt Sharma & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Saloni Sharma, Advocate for the appellants. Rakesh Kumar Garg, J.(Oral) CM No.13887-C of 2009 CM is allowed subject to all just exceptions. RSA No.4630 of 2009(O&M) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent No.1 for separate possession of one half share in the suit property has been decreed and a preliminary decree has been passed. As per the averments made in the plaint, the suit properties were owned by one Jiwan Ram who was grandfather of the plaintiff as well as defendant. Jiwan Ram died prior to 1956. Badri Narain and Lakshmi Narain, both sons of Jiwan Ram succeeded to the entire estate of Jiwan Ram in equal shares. After the death of Badri Narain, plaintiff succeeded to one half shares in the suit properties. The remaining half shares of the properties was succeeded by the defendants, after the death of Lakshmi Narain. Since the plaintiff was unable to enjoy his shares in the properties in dispute and he wanted to get his shares separated from the joint properties, necessity arose to file this suit. RSA No.4630 of 2009(O&M) 2 Defendants No.1, 2 and 4 filed written statement taking various preliminary objections. On merits, it was submitted that the plaintiff- respondent had no interest or title in the property in dispute as there was a settlement of shares during the lifetime of Jiwan Ram who died on 24.5.1957. Badri Narain died on 28.1.1971 whereas Lakshmi Narain died on 25.10.1997. Had the plaintiff any interest in the property, he was at liberty to claim and challenge during the lifetime of Lakshmi Narain, the father of defendants. There was no joint property and therefore, no right accrued to the plaintiff to file the present suit. The other defendants failed to appear despite service and were proceeded against ex parte vide order dated 11.6.2001. The plaintiff as well as the defendant led evidence. The trial Court after hearing the learned counsel for the parties and going through the record decreed the suit of the plaintiff. Feeling aggrieved against the impugned judgment and decree of the trial Court, defendants No.1 to 3 filed an appeal before the Lower Appellate Court. After hearing learned counsel for the parties, the Lower Appellate Court affirmed the judgment and decree of the trial Court. While passing the impugned judgment and decree the Additional District Judge, Hoshiarpur observed as under: “11. I have carefully consideration the submissions made before me. It is not disputed that suit properties were owned by Jiwan Ram, who was grandfather of the parties. As per case of the defendants, suit properties were given to their father Lakshmi Narain in a family settlement by his father Jiwan Ram whereas Badri Narain, father of the plaintiff, was given one pucca house constructed over 5 ½ marlas of land. No RSA No.4630 of 2009(O&M) 3 evidence has come on file about family settlement or whether said family settlement was ever acted upon and in lieu thereof, pucca house was given to the deceased Badri Narain. Plaintiff appeared as his own witness as PW4. No question was put to him in his cross- examination on behalf of defendants that Jiwan Ram owned one other house, which he gave to his father, in the family settlement. 12. DW3 Kanwarjit Singh is from the same village where the suit properties are situated and which is the native place of the parties. He has stated in cross- examination that Jiwan Ram had two houses and one shop only and except these properties, Jiwan Ram had no other property in his name in the village. He further admitted as correct that Badri Narain and Lakshmi Narain never partitioned their joint properties. He also admitted as correct that entire property at village Panchnangal was inherited by Badri Narain and Laxmi Narain from their father Jiwan Ram. In examination-in- chief, the witness had stated that Badri Narain had sold his house to Ram Sarup. 13. DW4 Kasturi Lal whose father Vasdev, had purchased the house from Badri Narain, though stated in examination-in-chief, that said property had come to Badri Narain from his father, but in cross-examination, he stated that he has no knowledge regarding property of Jiwan Ram or properties inherited by Badri Narain and Lakshmi Narain. He could not say if both the RSA No.4630 of 2009(O&M) 4 brothers had joint properties, which they inherited from their father. He further could not say whether the house which was sold by Badri Narain vide sale deed Mark D1, was inherited by Badri Narain from his father or whether it was self acquired property. 14. DW5 Sudarshan Kumar is one of the defendants. He has deposed that his grandfather had executed a will on 5.1.1957, copy of which is Mark D7. Said Will was neither pleaded nor proved by the defendants. If plea of the defendants is accepted that Jiwan Ram had partitioned his properties in favour of his two sons during his lifetime, then there was no question for execution of any will by Jiwan Ram. It is thus held that defendants have failed to prove that any pucca house was given by Jiwan Ram during his lifetime to Badri Narain in any family settlement. No evidence has come on file that said house was owned by Jiwan Ram. The house stands alienated by Badri Narain during his life time. Said house was thus no more part of the joint properties, inherited by the two brothers from their father. Only the properties which were joint on the date of institution of the suit, are to be taken into consideration for the purpose of partition. There is, thus, no illegality with the findings recorded by the learned trial Court on various issues, which findings are affirmed.” Still not satisfied, the appellants (defendants No.1 and 2) have filed the present appeal challenging the judgment and decrees of the Courts below. RSA No.4630 of 2009(O&M) 5 I have heard learned counsel for the appellants. The only point before this court in this appeal is whether the property in dispute is still joint or had been partitioned between the parties on the basis of oral partition as set up by the defendant-appellants in their defence. The Courts below on appreciation of evidence have recorded a finding of fact that the appellants have failed to prove their assertions/plea as set up by them. The question whether the property in dispute partitioned on the basis of oral partition as alleged or is still joint is essentially a question of fact which has been answered against the appellants by the Courts below by recording a concurrent finding of fact. There is nothing on record to show that the findings so recorded by the Courts below are perverse in any manner. No question of law, much less, substantial question of law arises in this second appeal which requires interference by this Court while exercising its power under Section 100 of the CPC. Thus, I find no merit in this appeal. Dismissed. January 29, 2010 (RAKESH KUMAR GARG) ps JUDGE