25.09.2025 Daryao Sin ao Singh … v. Risal Singh l Singh
Case Details
RSA-968-2023 (O & M) 1 IN THE HIGH COURT OF PUNJA IN TH AT CHANDIGAR UNJAB AND HARYANA IGARH 118 Regular Second Appeal No.9 l No.968 of 2023 (O & M) .2025 Date of decision :-25.09.2025 Daryao Sin ao Singh …..Appellant Versus Risal Singh l Singh (deceased) through LRs and s and others …..Respondents CORAM: AM:- HON'BLE MS. JUSTICE NI E NIDHI GUPTA Present:- ocate Mr. N.K. Malhotra, Advocate for the appellant. NIDHI GU HI GUPTA J. (Oral) The plaintiff has filed the pre he present second appeal against the concur oncurrent judgments and decrees of of the learned Courts below whereby th eby the suit filed by the appellant for nt for declaration and permanent injunction ction, has been dismissed by both the th the Courts below. Order sheets reveal that till da till date notice of motion has not been issued issued in the matter, and it has been a been adjourned either on request of learned arned arguing counsel or learned prox
Legal Reasoning
d proxy counsel for the appellant on 18.4.2 18.4.2023, 18.8.2023, 22.9.2023, .2023, 28.11.2023, 01.2.2024, 09.4.2024, .2024, 14.8.2024 and 18.2.2025. 25. Today again request for adjournmen rnment is made by ld. counsel for sel for the appellant. However, keeping in ing in view the above facts, this Court Court is not inclined to accede to the request equest of the appellant. VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document RSA-968-2023 (O & M) 2 Perusal of the record reveals eveals that the plaintiff/appellant had filed s filed suit for declaration and permane rmanent injunction. The plaintiff is the son o son of defendant No.1 and brother o ther of defendants No.2 and 3. It was the p the pleaded case of the appellant ellant that the plaintiff and the defendants dants have joint rights in the seve several ancestral properties as mentioned ioned in para 1 of the plaint; as all the all the properties are ancestral in nature; and and the plaintiff alongwith defendan fendants No.2 and 3 have right in them since since birth. It was alleged that the pa parties are in joint possession of agricultu ricultural land as described in the pl the plaint, which they cultivate. About one t one week prior to filing of the suit he suit, the plaintiff had come to know that that defendant No.1 had execute xecuted a Release Deed dated 7.2.2006 in 006 in favour of defendants No.2 and .2 and 3, in pursuance to which a mutation d tion dated 29.4.2006 had been sanctio sanctioned. It was the case of the plaintiff tha tiff that defendant No.1 had only 1/4 ly 1/4th share in the suit land and could there therefore not have relinquished the p d the plaintiff’s share in favour of the said de aid defendants No.2 and 3. Accordi ccordingly, plaintiff had alleged fraud and c and collusion between the defendant endants asserting that the Release Deed was a was a mere paper transaction, which which was never acted upon and therefore is fore is illegal, null and void. With t With these pleadings the present suit was fil as filed on 5.10.2007 by the appellan pellant seeking a declaration that: the Releas Release Deed/Dastbardarinama No.22 No.2218/1 dated 07.2.2006 and subsequent equent mutation No.5225 dated 2 ted 29.4.2006 and subsequent ue revenue entries, on the sis basis of the said Release Deed/Dastb /Dastbardarinama are illegal, null and ll and void and not binding upon the rights a ights and interest of the plaintiff; and and a further declaration that VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document RSA-968-2023 (O & M) 3 plaintiff be tiff be declared as owner in possessio session of 1/4th share of property in question estion; and further a decree for perma permanent injunction restraining the defend efendant No.1 from alienating or tra or transferring the properties in question in tion in favour of defendants No.2 and .2 and 3 or any other person; and from restra restraining the defendants from in rom interfering in the peaceful possession ession of the plaintiff over the properti roperties in question. Vide judgment and decree da ree dated 07.7.2015, the learned Civil Judge Judge (Jr. Divn.), Rohtak had dismis dismissed the suit of the plaintiff. The appea appeal filed by the plaintiff was was dismissed by the learned Additional tional District & Sessions Judge vide e vide judgment and decree dated 30.11.2022 1.2022. Hence, present second appeal ppeal by the plaintiff. It is inter alia submitted by ted by learned counsel for the plaintiff th tiff that the learned Courts below w low were in patent error in non- suiting the g the appellant as judgments of b of both the Courts below are against the st the facts and law involved in the pr the present suit; as also contrary to the evid e evidence led by the parties. The The learned Courts below have failed to a d to appreciate the case in the right right perspective as, they have ignored tha red that the respondents in their writt r written statement had admitted the nature o ature of the suit property to be ancest ancestral in nature; and have also admitted th tted the share of the appellant, howev however, as 1/9th instead of 1/4th. This fact h fact has also been admitted by the by the defendant No.2 as DW2 during his c g his cross-examination. It is argued t gued that this amounts to judicial admission o ssion on the part of the respondents; and therefore, the suit of the appellant w llant was liable to be decreed. Thus, in hus, in non-suiting the appellant, learned Co ed Courts below have ignored materia aterial evidence on record. VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document RSA-968-2023 (O & M) 4 Moreover, plaintiff had pro d proved his case by leading cogent and nt and convincing evidence in the he shape of oral as well as documenta mentary evidence, which has been alto en altogether ignored by both the Courts belo ts below. Thus, the judgments and d and decrees of both the Courts below are b w are based on conjectures and surmis surmises. Even, one of the sisters of the appe e appellant and defendants No.2 and 2 and 3, who has been examined by the resp e respondents, has stated in cross-exa examination that all sisters do not want an ant any share in the suit property. Le Learned counsel accordingly prays that t s that the judgments and decrees of bo s of both the Courts below suffer from mater material error and deserve to be set as set aside. No other argument is raised aised by learned counsel for the appellant. llant. I have head learned counsel unsel and find no merit in the submission issions advanced on behalf of the appe e appellant. The pleaded case of the appell appellant is that the suit land was ancestral i stral in nature; and therefore, Risa , Risal Singh could not have executed th uted the Release deed of the suit land t land in favour of the defendants no.2 and 3 and 3. However, it has been concu concurrently found by both the Courts belo ts below that the plaintiff has misera miserably failed to establish this fact. The p The plaintiff has failed to produce a duce any evidence on record to show that that Risal Singh/defendant No.1/fa /father of the plaintiff, had inherited th rited the property in dispute from his m his father Ranjeet Singh, who had further further inherited the same from his fath his father. Plaintiff failed to show that the lan the land in dispute was inherited by fat by father of plaintiff Risal Singh through his gh his male ancestor upto three degre degrees. Thus, in the absence of evidence, i ence, it cannot in any manner be said e said that the property in dispute VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document RSA-968-2023 (O & M) 5 was joint H joint Hindu Family ancestral property operty in the hands of defendant No.1. By way of additional evidence idence, the plaintiff had produced mutation fr tion from 1904 (Ex.P7, P8, P9) with ) with translation, and Ex.P10 to show that t that the property was ancestral. Howe . However, the same is not of any help to the to the plaintiff as the core issue in the in the present case is the validity of the Re he Release Deed dated 07.2.2006, 2006, which was executed by defendant N dant No.1 in favour of his sons i.e. d i.e. defendants No.2 and 3. The burden was en was upon the plaintiff to prove that ve that the property was ancestral and must must travel through three linear gen ar generations. Even as per the additional ional evidence produced by the plain plaintiff, nature of suit property as ancestra cestral is not established as, in the ow the ownership column in the said Jamabandis bandis Ex.P7 to P10 ownership o hip of thola has been shown, whereas in eas in the column of possession Gove Goverdhan, Neki, Jaikaran sons of Harnam arnam and Goverdhan son of Pira Pira son of Hanu; and Hasan, Harnam so am sons of Leta have been shown. T wn. The name of the father and grand-fathe father of Risal Singh is not men t mentioned in the column of ownership ership or in the column of possessio ssession. Neki and Harnam are mentioned ioned in the column of cultivating po ing possession. Thus, the learned first Appel Appellate Court had correctly held held that as the plaintiff was unable to p le to prove the ancestral nature of th e of the suit property, the same would be d be taken as self-acquired proper property in the hands of Risal Singh - def defendant No.1; and therefore, he re, he was competent to execute the Release elease Deed dated 07.2.2006. VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document RSA-968-2023 (O & M) 6 Even otherwise, present seco t second appeal is liable to be rejected on on the ground that this Court in S rt in Second Appeal has limited jurisdiction diction to interfere in the concurrent fi rrent findings of facts returned by the ld. Cou Courts below. The Hon’ble Supre Supreme Court in M/s. Shivali Enterprise rises v. Godawari (Deceased) (SC (SC): Law Finder Doc Id # 2034559; 59; has held as under: - “14. This Court, in the case of Ra “14. Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC Sing SCC 71, after considering the scope of interference under the ol scop e old section 100 of the Civil Procedure Code, 1908 (for short "C Proc t "CPC") and Section 41 of the Punjab Act, has observed thus: Punj "15. A perusal of the aforesa that the jurisdiction in second with the findings of fact on th erroneous, however, gross or seem to be. The findings of findings on the basis of do jurisdiction to interfere in t where there is an error in l merely an error on a question oresaid judgments would show cond appeal is not to interfere on the ground that findings are s or inexcusable the error may s of fact will also include the f documentary evidence. The in the second appeal is only in law or procedure and not tion of fact.” 15. It could thus be seen that this 15. I this Court has held that, even when a court exercises jurisdiction when ction under Section 41 of the Punjab Act, it cannot interfere wi Punj e with the findings of fact in second appeal on the ground th seco d that the said findings are erroneous, howsoever gross or inexc erro inexcusable the error may seem to be. It has been held that the fi to b he findings of fact would also include the findings on the basis of inclu s of documentary evidence. The jurisdiction under Section 41 of juris of the Punjab Act would be available only when there is a substa avai ubstantial error or defect in the procedure provided by the CPC or proc C or by any other law for the time being in force.” time (Emphasis added) (Emp VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document RSA-968-2023 (O & M) 7 In the present case, no such such error or defect in law or procedure h edure has been brought to the notice of tice of this Court. The Hon’ble Supreme Court Court in the judgment of “Mst. Sugani vs. i vs. Rameshwar Das and anothe nother” Law Finder Doc Id# 123580, ha , has gone on to further hold that “ that “the concurrent findings of facts howso owsoever erroneous cannot be distu disturbed by the High Court in exercise of se of the powers in second appeal”. ”. Again, in Avtar Singh Vs. Bimla Dev Devi and others, 2021(4) RCR (Civ (Civil) 402 Hon'ble Apex Court has held th eld that finding of fact cannot be int be interfered with in exercise of second App nd Appellate jurisdiction. Learned counsel for the plain plaintiff is unable to dispute or controvert rovert the above said concurrent fin ent findings of both the Courts below; or e ; or even the legal position as recorde ecorded above. As such, I found no ground to und to interfere in the judgments and decree decrees of the learned Courts below. elow. Hence, the present appeal stands dism dismissed. Pending application(s), if any,
Decision
if any, shall stand(s) disposed of. ember 25, 2025 September Vijay Asija Whether spea Whether Repo r speaking/reasoned Yes / No r Reportable Yes / No ( NIDHI GUPTA ) JUDGE VIJAY ASIJA 2025.09.30 14.09 I attest to the accuracy and integrity of this document