RSA No.2493 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2493 of 1984 Date of decision 28.4.2011 Virenderpal Singh Appellant v. Surjit Kaur and another Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Jasbir Singh Chahal,Advocate for the appellant None for the respondents .... JITENDRA CHAUHAN.J This regular second appeal has been filed against the judgment and decree dated 10.9.1984 passed by learned First Appellate Court, whereby the judgment and decree dated 7.4.1984 passed by the learned trial Court were upheld. Virenderpal Singh, appellant(minor through Jagir Singh,maternal father) filed a suit for declaration challenging decree dated 13.3.1978 in civil suit No.184 of 1978 titled as “Surjit Kaur v. Mema Singh” on the ground that the decree was result of collusion between Mehma Singh,defendant No.1 and Surjit Kaur,defendant No.2, father and aunt (Bua)(sister of defendant No.1) of the plaintiff-appellant. The suit was contested by Surjit Kaur (as Mehma Singh did not appear before the courts below and was proceeded against ex-parte) The decree was stated to be based on a family settlement. RSA No.2493 of 1984 2 The trial court dismissed the suit of the plaintiff holding that the suit property was not a co-parcenary property but absolute property of Mehma Singh,the father of the plaintiff-appellant and the decree based on family settlement was valid decree. The Ist Appellate Court affirmed the findings of the Ld.trial Court. Hence, the appellant has preferred this regular second appeal. Learned counsel for the appellant argued that the findings recorded by both the courts below are against law and facts on the file and decree dated 13.3.1978 is a collusive decree and the same is not binding on the appellant. He further argued that the suit property is coparcenary property, having devolved upon Mehma Singh from his father Arjan Singh and the courts below have overlooked the revenue record and other evidence. In support of his arguments, he placed reliance on Bhoop Singh v. Ram Singh Major (SC) 1996(1) P.L.R 559. None has put in appearance for the respondents. I have heard the learned counsel for the appellant and gone through the record. Admittedly, Virenderpal Singh, the appellant (minor) is the son of Mehma Singh, (defendant No.1) son of Arjan Singh. Respondent-Surjit Kaur daughter of Arjan Singh is the sister of Mehma Singh. Arjan Singh, grandfather of the appellant died in the year 1977. The entire property was exclusively held by Arjan Singh. After his death, the property was inherited by his three daughters namely Parkash Kaur, Paramjit Kaur and Surjit Kaur and his one son Mehma Singh. Mehma Singh has 1/4th share in the property in dispute. Virenderpal- Appellant had interest by birth in the property held by Mehma Singh, being the ancestral property. It has come on record that RSA No.2493 of 1984 3 Arjan Singh left land in three different villages i.e. Kharar, Khanpur and Bassi . Mehma Singh being the Karta of the family entered into a family settlement with Surjit Kaur and in lieu of that family settlement, he had transferred the property in dispute, which was the subject matter of decree dated 13.3.1978. It has come on record in the statement of DW-2 Arur Singh that after the death of his father, Surjit Kaur was claiming her share in the property. A dispute between her and Mehma Singh arose and a family settlement was arrived at and the land in dispute was given to Surjit Kaur in that family settlement. DW-4 Avtar Singh stated that after the death of Arjan Singh, a dispute arose between his mother Surjit Kaur and Mehma Singh and other two sisters which was settled by family settlement and the land in dispute was given to Surjit Kaur alone.The lands of Villages Khanpur and Kharar were given to Mehma Singh,Parkash Kaur and Paramjit Kaur. Surjit Kaur then filed a suit which was decreed in her favour. This was an oral family settlement and no writing work was done. This settlement was made in the presence of some persons of village Bassi. It cannot be said that Mehma Singh was not competent to enter into this family settlement. He was fully competent to make a family settlement, which he did in good faith. The contention of learned counsel for the appellant that the decree dated 13.3.1978 is a collusive one, has no legs to stand on. The authority cited by the learned counsel for the appellant is not applicable to the facts of the case in hand. Both the courts below have rightly held that the suit property was not a coparcenary property but the absolute property of Mehma Singh and the decree dated 13.3.1978 was a valid decree. No substantial question of law arises for determination of this RSA No.2493 of 1984 4 Court. In Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314, it has been held as under: “The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” There is no scope to interfere in the concurrent finding of facts of both the courts below. Resultantly, this regular second appeal fails and is dismissed. (JITENDRA CHAUHAN) JUDGE 28.4.2011 MS Note:Whether to be referred to Reporter? Yes/No.