Lakhwinder Singh vs Joginder Singh and Others

L.N. Mittal, J.—Plaintiff No. 1 Lakhwinder Singh having lost in both the courts below has come up by way of second appeal.

Suit was filed by appellant-plaintiff No. 1 along with his brother Sukhwinder Singh plaintiff No. 2/proforma respondent No. 4. However, suit on behalf of plaintiff No. 2 stood dismissed under Order 9 Rule 8 of the Code of Civil Procedure.

Plaintiffs alleged that their father Dara Singh since deceased and his real brother Joginder Singh defendant/respondent No. 1 (father of defendants/respondents No. 2 and 3) were in possession of four properties depicted by marks ABC and D in the site plan annexed with plaint. By way of oral partition, suit plot mark A measuring 15 marlas and residential house mark B measuring 6 marlas fell to the share of plaintiffs'' father Dara Singh whereas plot mark C measuring 71/2 marlas and house mark D fell to the share of defendants who are in possession thereof. After death of Dara Singh, plaintiffs being his sons and legal heirs became owner in possession of plot mark A and house mark B. However, the defendants without any right, title or interest threatened to dispossess the plaintiffs from plot mark A. Accordingly, plaintiffs sought permanent injunction restraining defendants from doing so.

The defendants broadly denied the plaint averments. Defendants pleaded that suit land bears khasra No. 138/2 which was owned and possessed by Kartar Kaur who gave the same to defendant No. 1 about 25 years ago. Defendant No. 1 constructed Haveli in the suit land along with veranda, khurli etc. and since then he is in possession of the suit property. Plaintiffs are residing in Farm house 10 killas away after selling their house to Surjit Singh''s sons Karaj Singh etc. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Tarn Taran vide judgment and decree dated 21.8.2009 dismissed the plaintiffs'' suit. First appeal preferred by plaintiff No. 1 has been dismissed by learned Additional District Judge, Tarn Taran vide judgment and decree dated 28.4.2010. Feeling aggrieved, plaintiff No. 1 has filed the instant second appeal.

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

Both the parties have led oral evidence in support of their respective versions. However, onus was on the plaintiffs to prove that they are owners in possession of the suit plot. They have failed to discharge the said onus. The plaintiffs claimed the suit plot through their father Dara Singh but the plaintiffs failed to prove that even their father Dara Singh was owner or in possession of the suit plot. Plaintiffs also failed to prove alleged oral partition between their father Dara Singh and defendant No. 1.

Both the courts below have analysed the evidence led by the parties and have come to concurrent finding of fact against the plaintiffs. The said finding of fact is not shown to be perverse or illegal nor it is based on mis-appreciation or misreading of evidence so as to call for interference in second appeal. Fate of lis depends on the finding of fact. No question of law much less substantial question of law arises for adjudication in the instant second appeal. On the contrary, oral evidence of the plaintiffs has been found to be not reliable being contradictory.

For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine.