R. S. A. No. 1786 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1786 of 2011 Date of Decision : April 25, 2011 Mam Chand .... Appellant Vs. Roshni and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. S. Hira, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Mam Chand, having failed in both the courts below, has filed the instant second appeal. Suit was filed by plaintiff Sahab Ram (since deceased and now represented by respondents as his legal representatives). Defendant-appellant and original plaintiff were real brothers. Plaintiff's case is that suit plot no.9 was allotted to him and he is owner thereof. Part of it is in occupation of Hari Singh etc., against whom plaintiff has filed separate suit. Remaining portion of the disputed plot was being used by the defendant as gatwar depicted by letters ABCD in red colour in R. S. A. No. 1786 of 2011 2 site plan, being brother of the plaintiff and with his permission. The defendant was thus licensee on it under the plaintiff. However, the defendant tried to usurp the said plot by started digging foundations for construction of three shops on western part of the plot. The plaintiff, therefore, revoked the license of the defendant on 14.07.1997 and asked the defendant to vacate the suit property. However, the defendant failed to do so, necessitating the filing of the instant suit for mandatory injunction and permanent injunction. The defendant alleged that both the plaintiff and defendant and their third brother Inder Singh formed joint Hindu family and the plot in question was allotted to the plaintiff as karta of joint Hindu family being eldest of the three brothers and accordingly, all the three brothers had 1/3rd share each therein. Plaintiff has sold his 1/3rd share to Hari Singh etc., whereas Inder Singh surrendered his 1/3rd share in favour of the defendant, who accordingly became owner in possession of the suit property i.e. 2/3rd share in the plot. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurgaon, vide judgment and decree dated 14.10.2009, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 14.02.2011. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the R. S. A. No. 1786 of 2011 3 case file. Learned counsel for the appellant reiterated the defendant's stand that the suit property was joint Hindu family property of the three brothers and defendant-appellant is owner of the suit property being 2/3rd share of the plot i.e. 1/3rd share of the defendant himself and 1/3rd share of his brother Inder Singh. I have carefully considered the contention, but find no merit therein. There is practically no evidence on record to depict that plot in question was allotted to the plaintiff as karta of joint Hindu family constituted by the plaintiff, defendant and Inder Singh. On the contrary, according to the defendant, they were three brothers, but it has come in evidence that they were in fact five brothers in all. Separate plots were allotted to all the brothers. The other two brothers are Jagi Ram and Manohar Lal, to whom separate plots were allotted. Separate plot was allotted to defendant-appellant Mam Chand also. Consequently, it cannot be said that the suit plot, which was allotted to the plaintiff, was allotted to him as karta of the joint Hindu family. On the other hand, all the brothers got allotted separate plots, and therefore, suit plot was exclusive property of plaintiff, in which defendant had no right, title or interest. Consequently, the suit has been rightly decreed by the courts below. Self-serving statement of defendant does not depict that the suit property was allotted to plaintiff as karta and it also does not depict that Inder Singh surrendered his R. S. A. No. 1786 of 2011 4 alleged 1/3rd share in the suit plot to the defendant. Concurrent finding recorded by both the courts below against the defendant-appellant and in favour of the plaintiff is fully justified by the evidence on record. The said finding is supported by cogent reasons. It is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. In fact, the defendant having failed to substantiate his version as pleaded in the written statement, also came out with a new version during trial that he had become owner of the suit property by adverse possession. However, the said version could not be accepted in the absence of pleadings or any cogent evidence. Finding recorded by the courts below being not perverse or illegal in any manner does not warrant interference in exercise of second appellate jurisdiction. In fact, the said finding is the only reasonable finding that could be arrived at on the basis of evidence on record. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. April 25, 2011 ( L. N. MITTAL ) monika JUDGE