Chet Ram vs Pohu and another

L.N. Mittal, J.

C. M. No. 14958-C of 2010 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 40 days in filing the appeal is condoned.

C. M. No. 14959-C of 2012 :

Allowed as prayed for.

Main Appeal :

Defendant no.1 - Chet Ram, having lost in both the courts below, has approached this Court by way of instant second appeal.

Respondent no.1-plaintiff Pohu filed suit against defendant no.1-appellant and proforma respondent no.2 Ram Singh as defendant no.2 for separate possession of his share by partition of the suit property. It was alleged in the suit that the plaintiff is mentally infirm and is deaf and dumb. The suit was therefore filed through his daughter Baggo alias Giano as next friend. It was pleaded that plaintiff and defendant no.1 are joint owners/cosharers in joint possession of the suit property to the extent of half share each. Both of them are grandsons of Sadhu, through whom they inherited the suit property. Some construction was also raised separately by fathers of plaintiff and defendant no.1. Defendant no.2 claims to have got some sale deed in his favour executed by defendant no.1. Defendants started threatening to dispossess the plaintiff from the suit land forcibly and illegally. Accordingly, the plaintiff sought partition of the suit property.

Defendants filed separate written statements contesting the claim of the plaintiff. It was alleged that plaintiff is person of sound mind. It was admitted that suit property was ancestral property of plaintiff and defendant no.1. However, it was pleaded that in family settlement about 40 years ago, suit land fell exclusively to the share of father of defendant no.1, whereas plaintiff''s father was compensated by giving agricultural land. Accordingly, defendant no.1 claimed to be exclusive owner in possession of the suit land, out of which he had sold small portion to defendant no.2, who is owner in possession of that portion. Defendant no.2 also claimed to be bona fide purchaser of the aforesaid portion for valuable consideration from defendant no.1 vide registered sale deed dated 21.05.2001. It was denied that suit property is joint property of plaintiff and defendant no.1. Some other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Anandpur Sahib, vide judgment and decree dated 28.03.2009, decreed the plaintiff''s suit holding the plaintiff to have half share in the suit property. Defendants have also been restrained from raising any construction and from alienating the suit property beyond their share till final partition. First appeal preferred by defendant no.1 has been dismissed by learned Additional District Judge, Ropar, vide judgment and decree dated 20.04.2010. Feeling aggrieved, defendant no.1 has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

As noticed herein before, it has been admitted that the suit property was ancestral property of plaintiff and defendant no.1, wherein they inherited half share each. Consequently, onus was on the defendants to prove that in any family settlement, the suit property fell to the exclusive share of defendant no.1 or his father, whereas plaintiff or his father was compensated by some agricultural land. However, defendants have miserably failed to prove their said version. There are only self-serving statements of both the defendants besides examination of Draftsman, who proved site plan only. Defendant no.2 obviously was not party to the alleged family settlement and could have no personal knowledge thereof. Thus, we are left with self-serving bald and oral statement of defendant no.1 only regarding the alleged family settlement. Obviously, said statement of defendant no.1 is not sufficient to prove the aforesaid version of defendants regarding alleged family settlement. On the other hand, plaintiff''s evidence is sufficient to rebut the said testimony of defendant no.1. There is also no documentary evidence to depict that any agricultural land was given to the plaintiff or his father in lieu of their share in the suit property.

In view of the aforesaid, courts below have rightly held that plaintiff has half share in the suit property. Concurrent finding of fact recorded by both the courts below to this effect is fully justified by the evidence on record and does not suffer from any infirmity, much less perversity or illegality so as to warrant interference by this Court in exercise of second appellate jurisdiction. On the contrary, the said finding is the only reasonable finding that can be arrived at on appreciation of evidence. The said finding is not based on misappreciation or misreading of evidence so as to warrant interference in second appeal.

Counsel for the appellant contended that respondent no.1- plaintiff is not of unsound mind, and therefore, the suit has not been properly filed on his behalf through his daughter as next friend. The contention cannot be accepted. In previous litigation, suit filed by the plaintiff, through next friend on the same ground relating to some other property stands decreed. Counsel for the appellant contended that second appeal in the said previous litigation stands admitted in this Court. However, perusal of the motion order dated 13.09.2004 passed in R. S. A. No. 2719 of 2003 reveals that in that case, defendant no.1 Chet Ram had pleaded some Power of Attorney in his favour executed by plaintiff Pohu. In this context, it was contended that the said Power of Attorney could not be ignored. However, on this basis, it cannot be said that the instant suit was not filed properly on behalf of the plaintiff.

For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine.