R. S. A. No. 710 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 710 of 2011 (O&M) Date of Decision : April 26, 2011 Jangu Ram and others .... Appellants Vs. Sham Sunder and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. K. Gupta, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 1923-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 49 days in re-filing the appeal is condoned. C. M. No. 1924-C of 2011 : Allowed as prayed for. Main Appeal : Defendants no.1 to 3, having lost in both the courts below, are in second appeal. R. S. A. No. 710 of 2011 (O&M) 2 Respondent no.1-plaintiff Sham Sunder filed suit against appellants and proforma respondents no.2 to 5 alleging that plaintiff, defendants no.1 and 2 and their brother Ram Chand (since deceased and represented by defendants no.3 to 7) purchased the suit property in equal shares i.e. 1/4th share each. Plaintiff sought separate possession of his 1/4th share in the suit property by partition thereof. Defendants inter alia pleaded that the plaintiff has no right or share in the suit property. The suit property was purchased by defendants no.1 and 2 and Ram Chand from their own funds. No consideration was contributed by the plaintiff for purchasing the suit property, but his name was added in the sale deed being brother of the actual vendees i.e. defendants no.1 and 2 and Ram Chand. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Patiala, vide judgment and decree dated 28.07.2006, decreed the plaintiff's suit and passed preliminary decree of partition of the suit property. First appeal preferred by the defendants no.1 and 2 has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 22.07.2010. Feeling aggrieved, defendants no.1 to 3 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. R. S. A. No. 710 of 2011 (O&M) 3 Defendants themselves have pleaded that plaintiff is mentioned as co-vendee in the sale deed to the extent of 1/4th share in the suit property along with defendants no.1 and 2 and Ram Chand, who are also vendees to the extent of 1/4th share each in the suit property, as per the sale deed. Consequently, the courts below have rightly held the plaintiff to be co- sharer of the suit property to the extent of 1/4th share. Learned counsel for the appellant contended that the sale deed in question has not been proved by the plaintiff in accordance with law. The contention is not only misconceived and meritless, but is also frivolous. It is the defendants' own case that the sale deed regarding purchase of the suit property is in favour of the plaintiff, defendants no.1 and 2 and Ram Chand in equal shares. Consequently, sale deed was not required to be proved when the aforesaid fact is admitted by defendants in the written statement. Learned counsel for the appellants relied on Mohinder Singh vs. Krishan Lal and others reported as 2009 (2) R.C.R. (Civil) 642 - a judgment of this Court to contend that certified copy of the registered sale deed is secondary evidence, which could not be taken into consideration. The contention is misconceived because the execution of the sale deed stands admitted. Even otherwise, the plea of benami transaction in favour of the plaintiff is barred by Section 4 of the Benami Transactions (Prohibition) Act (45 of 1988). In addition to the aforesaid, defendants' plea is that the plaintiff R. S. A. No. 710 of 2011 (O&M) 4 did not contribute towards the sale consideration. On the basis of this plea, the plaintiff cannot be denied his share in the suit property and at best, the defendants could have asked for the share of consideration from the plaintiff. Learned counsel for the appellants also contended that the suit property is not partible being small property. However, no such plea was even raised by the defendants in their written statement nor there is any material on record to substantiate the same. Consequently, this contention cannot be accepted. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiff is fully justified by the evidence on record as well as by the pleadings of the parties. Case of the plaintiff practically stands admitted in the written statement. Finding recorded by the courts below is neither perverse nor illegal nor it is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. April 26, 2011 ( L. N. MITTAL ) monika JUDGE