REGULAR SECOND APPEAL No.1524 OF 2007(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.1524 OF 2007(O&M) DATE OF DECISION: JANUARY 7, 2011 Kapoor & others .... Appellants Versus Jagdish & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Sandeep K. Sharma, Advocate for the appellants. Mr. Chander Singh, Advocate for the respondents. * * * * L.N. MITTAL, J. (ORAL) Contesting defendants No.1 to 6 having failed in both the courts below are in second appeal. Suit was filed by respondent No.1-plaintiff Jagdish against appellants and against proforma respondent Nos.2 to 4 as proforma defendants No.7 to 9, for partition of two plots No.3572 and 3648 alleging that parties are descendants of common ancestor Hardutt from his two wives Udi and Siriya. Plaintiff and proforma defendant Nos.7 to 9 are descendants from Udi, whereas defendants No.1 to 6 are from Siriya. Hardutt had five sons out of whom one Kamal Dutt died issuelless and Jawala Dutt had two sons and both died issueless. Plaintiff and proforma-defendant Nos.7 to 9 are descendants of Kanshi Dutt son of Hardutt, whereas, defendant No.1 to 6 are descendants of Munnidutt and Chunnidutt sons of Hardutt. Plaintiff claimed half share in the suit plots for himself and proforma defendant Nos.7 to 9, leaving the other half share for defendant Nos.1 to 6. REGULAR SECOND APPEAL No.1524 OF 2007(O&M) -2- Defendant Nos. 1 to 6 contested the suit. They alleged that the pedigree table pleaded by the plaintiff is wrong. However, it was admitted that parties are descendants of Hardutt and that Hardutt was owner in possession of the suit plots. Contesting defendants, however, alleged that Udi separated from Hardutt during his lifetime and, therefore, Udi and her heirs were not given any share in the property of Hardutt. The plaintiff and proforma defendant Nos.7 to 9 being descendants of Hardutt from Udi are not entitled to any share in the suit plots once held by Hardutt, and only the descendants of Hardutt from Siriya i.e. defendant Nos.1 to 6 became owners of the entire property once held by Hardutt and, therefore, defendant Nos.1 to 6 are exclusive owners in possession of the suit plots also. They have constructed house on plot No.3648 after filling earth therein. They have also constructed one room in the other plot. Various other pleas were also raised. Learned Civil Judge (Senior Division), Jhajjar vide judgment and decree dated 16.08.2005 decreed the plaintiff's suit holding that plaintiff and proforma defendant Nos.7 to 9 have 1/3rd share in the suit plots. Some other ancillary directions were also given. Preliminary decree for partition was accordingly passed. First appeal preferred by defendant Nos.1 to 6 has been dismissed by learned Additional District Judge, Jhajjar vide judgment and decree dated 23.12.2006. Feeling aggrieved, defendant Nos.1 to 6 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Pedigree table Exhibit P-5 and also pedigree table Exhibit D-9 have been placed on record by both the parties. The pedigree tables depict that parties are descendants of Hardutt who had two wives. Plaintiff and REGULAR SECOND APPEAL No.1524 OF 2007(O&M) -3- proforma defendant Nos.7 to 9 are descendants of Hardutt from Udi, whereas, defendant Nos.1 to 6 are descendants of Hardutt from Siriya. This fact also stands admitted in the written statement. It is also undisputed that Hardutt was owner of the suit plots. Consequently, plaintiff and defendant Nos.7 to 9 also being descendants of Hardutt have share therein. Since out of five sons of Hardutt, two sons have no descendant alive, the other three branches of Hardutt have been held to have 1/3rd share each by the courts below. Accordingly, plaintiff and proforma defendant Nos.7 to 9 being from one branch have 1/3rd share in suit plots. Learned counsel for the appellants vehemently contended that Kanshi Dutt had two sons Murli Dutt and Bhagvan Dutt as per pedigree tables, but plaintiff and proforma defendant Nos.7 to 9 are descendants of Murli Dutt only, whereas, descendants of Bhagvan Dutt have not been impleaded. The contention cannot be accepted because no such plea was even raised in the written statement. Moreover there is not even an iota of evidence on record to depict that Bhagvan Dutt has left behind any descendant. Learned counsel for the appellants also contended that other brothers and sisters of plaintiff have also not been impleaded as parties. The contention is again frivolous and meritless being beyond pleadings and evidence. There is no pleading or material on record to depict that plaintiff has any brother or sister. Contesting defendants have alleged that Smt. Udi has separated from Hardutt in his lifetime and, therefore, Udi and her heirs were not given share in the property of Hardutt. However, it is not even mentioned in the written statement as to who did not give share to Udi or her descendants. There is also no evidence on record to substantiate this plea. Learned counsel for the appellants contended that a family settlement had taken place among REGULAR SECOND APPEAL No.1524 OF 2007(O&M) -4- descendants of Hardutt long back. The contention has been noticed simply to be rejected because the same is not supported by any pleading or evidence. It was pointed out that plaintiff had filed another suit against proforma defendant No.7 to 9 which was dismissed vide judgment Exhibit D-6. However, in the said case, the plaintiff claimed that he and proforma defendant Nos.7 to 9 herein (defendants in the said suit) had half share in the disputed house involved in that suit. It would not depict that there was any family settlement or partition among all the descendants of Hardutt. House involved in that suit might not have devolved from Hardutt. In any case, this contention is also completely beyond pleadings. Learned counsel for the appellants also pointed out that there is a note in the pedigree table that Hardutt had purchased 21 Bighas 17 Biswas land which after his death devolved on issues of Siriya, whereas no share was given to issues of Udi who had separated from Hardutt during his lifetime. However, on the basis of this note in the pedigree table, the plaintiff cannot denied any share in the suit plots. Even if Udi had separated from Hardutt during his lifetime, Udi or her issues or further descendants cannot be disinherited merely on this ground. Learned counsel for appellants next contended that appellants have moved CM No.4435-C of 2007 in this appeal for additional evidence to place on record Will Annexure A-1 dated 23.06.1886 and inheritance mutation of Hardutt dated 23.12.1887 Annexure A-2 by way of additional evidence. However, this additional evidence does not help the appellants in any manner being beyond pleadings. Moreover, the alleged Will and mutation do not pertain to the suit plots. For this reason also, the proposed additional evidence is of no relevance and cannot be admitted in evidence. REGULAR SECOND APPEAL No.1524 OF 2007(O&M) -5- Consequently, application for additional evidence is dismissed. For the reasons aforesaid, I find no merit in the instant second appeal, which is not only meritless but also completely frivolous. Even on the basis of admitted facts, plaintiff and proforma defendant Nos. 7 to 9 have 1/3rd share in the suit plots, whereas defendants No.1 to 6/appellants have the remaining 2/3rd share. Concurrent finding by both the courts to this effect does not suffer from illegality or perversity so as to call interference in second appeal. The said finding is based on proper appreciation of material on record and is supported by cogent reasons. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is hereby dismissed. (L. N. MITTAL) JUDGE 07.01.2011 'raj'