Smt. Giano vs Salwinder Pal and Others

Mehinder Singh Sullar, J.—The matrix of the facts, which requires to be noticed for the limited purpose of deciding the sole controversy, involved in the instant regular second appeal and emanating from the record, is that Salwinder Pal and Sukhdev Raj sons of Munshi Ram respondent Nos. 1 & 2-plaintiffs (for brevity "the plaintiffs") filed the suit against their mother Smt.Giano-appellant defendant No. 1, brothers Janak Raj and Balwant Rai and sister Chhindo respondent Nos. 3 to 5-defendant Nos. 2 to 4, seeking a decree for separate possession, by way of partition, by metes and bounds of the property in dispute, inter-alia pleading that Munshi Ram son of Labhu Ram was original owner and in possession of the joint property in dispute. He died on 20.3.1991, leaving behind the plaintiffs and defendants as his legal representatives. In this manner, the parties have already inherited his estate in equal shares. However, it was alleged that defendant No. 4 Chhindo has no share in it. According to the plaintiffs, as there remains a dispute between the co-sharers and they are not able to reap the fruits of their shares, therefore, they sought a decree for separate possession, by virtue of partition of the joint property in dispute. On the basis of aforesaid allegations, the plaintiffs filed the suit against the defendants, in the manner described hereinbefore.

The defendants contested the suit and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of the suit, estoppel, cause of action and locus standi of the plaintiffs. It was, however, admitted that Munshi Ram was the owner and in possession of the joint property and the parties are his legal heirs.

The case set up by the defendants, in brief in so far as relevant, was that the plaintiffs have no right in the suit property. The matter was stated to have been amicably settled on 6.4.2000 and a mutual partition has already been taken place. It was claimed that since the property in dispute has already been partitioned, so, the plaintiffs have no right, title or interest in it. 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.

Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case.

In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence.

The trial Court decreed the suit of the plaintiffs and passed a preliminary decree for separate possession to the extent of 1/6th share each, by means of partition, by metes and bounds of the joint property, by virtue of impugned judgment and decree dated 6.12.2005.

Aggrieved by the decision of the trial Court, the defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, through the medium of impugned judgment and decree dated 2.5.2008.

Appellant Smt. Giano widow of Munshi Ram (defendant No. 1) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and instituted the present regular second appeal.

After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context.

Ex-facie the argument of learned counsel for the appellant-defendant No. 1 that since the suit property has already been mutually partitioned between the parties and the plaintiffs have no right in it, so, the Courts below committed a legal mistake in decreeing their suit for partition, sans merits.

As is evident from the record that Munshi Ram son of Labhu Ram was the original owner and in possession of the joint property in dispute. Smt.Giano (defendant No. 1) is widow, while Salwinder Pal, Sukhdev Raj (plaintiffs), Janak Raj and Balwant Rai (defendant Nos. 2 and 3) are sons and Smt.Chhindo (defendant No. 4) is the daughter of Munshi Ram. In the wake of death of Munshi Ram on 20.3.1991, the parties to the suit have naturally inherited his property in dispute to the extent of 1/6th share each. The story, in regard to the alleged private partition and relinquishment of their shares by plaintiff No. 2 and defendant No. 4, put forth by the defendants, was rightly negatived by the Courts below.

Moreover, the trial Court has correctly passed the preliminary decree, which was affirmed by the first appellate Court, by way of impugned judgment and decree dated 2.5.2008. That means, the Courts below have 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 trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the parties to the lis are entitled to the extent of 1/6th share each in the property in dispute. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred u/s 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 appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect.

No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on her behalf, in this relevant direction, have already been duly considered and dealt with by the Courts below.

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, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon''ble Apex Court in case Kashmir Singh Vs. Harnam Singh and Another, in the obtaining circumstances of the present case.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such.