Karamjit Singh vs Ishar Kaur and Others

L.N. Mittal, J.—Karamjit Singh plaintiff has filed the instant second appeal having remained unsuccessful in both the courts below.

Appellant filed suit against respondents. Respondents No. 2 and 3 and plaintiff-appellant are sons of defendant-respondent No. 1 Ishar Kaur. The plaintiff''s case is that suit house was purchased in the name of defendant No. 1 with joint Hindu family funds including savings of plaintiff''s grandfather Harbans Singh. Improvement in construction was made by plaintiff and defendants No. 2 and 3. In family settlement in the year 1993, the suit property was partitioned in three parts amongst the three brothers i.e. plaintiff and defendants No. 2 and 3. The plaintiff also got installed electricity connection in his name in his portion of the suit property. Defendant No. 1 agreed to transfer the suit property by sale deed or by consent decree in favour of plaintiff and defendants No. 2 and 3, but taking advantage of the sale deed in her favour, defendant No. 1 started threatening to alienate the suit property and to dispossess plaintiff and defendants No. 2 and 3. Defendant No. 1 filed suit for permanent injunction against plaintiff and defendant No. 3 and later on, a suit for possession against the plaintiff. The plaintiff claimed that the plaintiff and defendants No. 2 and 3 are owners in possession of the suit house to the extent of 1/3rd share each and defendant No. 1 has no right, title or interest therein.

Defendant No. 3 was proceeded ex-parte in the trial court. Defendants No. 1 and 2 contested the suit and denied the plaint allegations and inter alia pleaded that defendant No. 1 alone purchased the suit house vide sale deed dated 02.12.1975 and constructed the said house and she alone is owner of the suit house. In the year 2000, plaintiff tried to take forcible possession of the suit house. Thereupon, defendant No. 1 filed suit for permanent injunction against plaintiff and defendant No. 3. The said suit was decreed by the trial court vide judgment and decree dated 18.04.2001 and first appeal against the said judgment and decree preferred by the plaintiff herein was dismissed by appellate court vide judgment and decree dated 26.11.2002, but during pendency of the said appeal, plaintiff herein took forcible possession of portion of the suit house and thereupon defendant No. 1 filed suit for possession of the said portion. The instant suit has been filed by the plaintiff as counter blast. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Bathinda, vide judgment and decree dated 26.03.2008, dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Bathinda, vide judgment and decree dated 17.12.2008. Feeling aggrieved, plaintiff has preferred the instant second appeal.

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

Learned Counsel for the appellant vehemently contended that defendant No. 1 admitted in her cross-examination that her father-in-law Harbans Singh was an ex-serviceman earning pension and husband of defendant No. 1 was also employed in Railways and plaintiff and defendants No. 2 and 3 had also started earning. However, it is beyond comprehension as to how this admission of defendant No. 1 depicts in any manner that the suit property was purchased with the income of plaintiff and defendants No. 2 and 3 or from the income of their father or grandfather. On the other hand, defendant No. 1 stated that plaintiff was residing separately.

Admittedly, sale deed of the suit house executed in the year 1975 is in favour of defendant No. 1 only. There is no cogent evidence to prove the alleged family settlement, under which the suit property was transferred to plaintiff and defendants No. 2 and 3 in equal shares. On the other hand, plaintiff has himself pleaded that defendant No. 1 agreed to transfer the suit property by way of sale deed or consent decree. This plea would depict that the suit property was never transferred by defendant No. 1 in favour of plaintiff and defendants No. 2 and 3 and at best, defendant No. 1 allegedly agreed to do so. However, actual transfer never took place. Consequently, even according to the plaintiff''s own version, it cannot be said that plaintiff and defendants No. 2 and 3 are owners in possession of the suit house in equal shares.

In addition to the aforesaid, the plaintiff although mentioned in the plaint that defendant No. 1 had filed a suit for permanent injunction against the plaintiff and defendant No. 3, but very cleverly concealed the fact that the said suit had been decided in favour of defendant No. 1, who had instituted the same and even first appeal went in her favour. In view of the decision in the said case also, the plaintiff has no right, title or interest in the suit property.

The matter does not rest here. Even suit for possession filed by defendant No. 1 against the plaintiff regarding portion of the suit property, which was in possession of the plaintiff, has also since been decreed and the said decree has attained finality, as submitted by the counsel for the plaintiff-appellant. In view thereof also, the plaintiff has got no right, title or interest in the suit property.

There is concurrent finding by both the courts below against the plaintiff-appellant. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law arises for determination in the instant second appeal. Claim of the plaintiff is completely frivolous, baseless and unfounded. The appeal is completely devoid of any substance and is dismissed in limine.