Randeep Singh & Ors. v. Ram Phal & Ors.

representatives, appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit for a decree of declaration to the effect that he was owner and in possession to the extent of 1/4th share in the disputed property and the decree dated 15.5.1982 (Ex.P5) and the subsequent mutation dated 11.4.2005 (Ex.P6) are illegal, null and void with consequential relief of permanent injunction restraining Ram Phal and others respondent-defendants (hereinafter to be referred as “the defendants”) from interfering in his (plaintiff) possession.

2. The case set up by the original plaintiff, in brief, in so far as relevant, was that a family settlement took place between the parties in the presence of Manga, according to which, the plot denominated by letters ABCD described in the site plan, fell to his share, while adjacent portion shown in yellow colour came to the share of defendant No.4. Manga died on 27.4.1981 without getting effected the change in the revenue entries/record in favour of the plaintiff. Therefore, the property of Manga was mutated in the name of Smt.Gherni alias Bhagwani. Regular Second Appeal No.1177 of 2010 2

3. Levelling a variety of allegations, in all, according to the plaintiff that he was owner and in possession to the extent of 1/4th share in the property in dispute, which had fallen to his share, in pursuance of the family settlement and the judgment and decree dated 15.5.1982 in civil suit No.268 of 1982 and subsequent mutation dated 11.4.2005 are illegal, null and void and the revenue record deserved to be corrected accordingly. On the basis of the aforesaid allegations, the plaintiffs filed the suit for a decree of declaration and permanent injunction against the defendants, in the manner detailed here-in-above.

4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit, cause of action of the plaintiffs and concealment of facts. On merits, the existence of any family settlement was denied. The decree dated 15.5.1982 rendered in civil suit No.268 of 1982 and impugned mutation were stated to be valid and binding on the rights of the parties. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. In the wake of the pleadings of the parties, the trial Court framed the necessary issues for trial.

6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective stands.

7. The trial Court, on ultimate analysis of the evidence on record, dismissed the suit of the plaintiffs, vide impugned judgment and decree dated

16.3.2009.

8. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 6.10.2009.

9. The appellant (plaintiffs) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present Regular Second Appeal No.1177 of 2010 3 appeal.

10. Having heard the learned counsel for the appellant-plaintiffs, having gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

11. However, the routine argument of the learned counsel for the appellant-plaintiffs that since it is established on record that the original plaintiff was entitled to the extent of 1/4th share in the property in dispute and the judgment and decree dated 15.5.1982 (Ex.P4 and Ex.P5) respectively passed in civil suit No.268 of 1982 and mutation (Ex.P6), in pursuance thereof, are illegal, so, the Courts below ought to have decreed his suit, is not only devoid of merit but misplaced as well.

12. The bare perusal of the record would reveal that the plaintiff claimed that the land bearing Khasra No.159 and plot (Garha Khad) situated in Khasra No.47/5/11 was allotted to him and his brother Gaje Singh to the extent of 1/8th share, while the remaining land was shared by his uncles Manga and Hari Singh, during consolidation proceedings, which took place in the year 1974-75. According to the plaintiff, in family settlement, the property in dispute shown in site plan (Ex.P1), was given to him and his brother. The defendants have stoutly denied the existence of any such family settlement.

13. The plaintiff has miserably failed to produce any cogent evidence of the existence of family settlement. On the contrary, it stands proved on record that after the death of Manga, his entire property was inherited by his wife Smt.Gherni alias Bhagwani, vide mutation of inheritance (Ex.P6). She suffered judgment dated

15.5.1982 (Ex.P4) and decree (Ex.P5) in civil suit No.268 of 1982, whereby some property was transferred in favour of defendant Nos.1 to 3. The remaining property was transferred in favour of Jaswant Singh, Rajbir Singh and Ranbir Singh sons of Fateh Singh, original plaintiff, vide another decree in civil suit No.269 of 1982. Therefore, the plaintiff completely failed to prove as to how and Regular Second Appeal No.1177 of 2010 4 in what manner he became owner to the extent of 1/4th share in the property in dispute and thus he had no right to challenge the judgment (Ex.P4) and decree (Ex.P5) in any manner. The courts below rightly negatived his claim in this regard.

14. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, have already been duly considered and dealt with by the Courts below, in this relevant direction.

15. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the original plaintiff was neither owner and in possession to the extent of ¼th share in the property in dispute, nor he had any legal right to challenge the judgment (Ex.P4) and decree (Ex.P5) rendered in civil suit No.268 of 1982. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this respect.

16. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the courts below as contemplated under section 100 CPC in the obtaining circumstances of the instant case.

17. No other legal point, worth consideration, has either been urged or Regular Second Appeal No.1177 of 2010 5 pressed by the learned counsel for the appellants.

18. In the light of the aforementioned reasons, as there is no merit, therefore, this appeal is hereby dismissed. (Mehinder Singh Sullar)

14.7.2010 AS Judge