Regular Second Appeal No. 2213 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Regular Second Appeal No. 2213 of 2009
Date of Order: 07.07.2009
Pawan Kumar
....Appellant
Versus
Saroj Bansal and another
..Respondents
CORAM: HON’BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr.Ashish Grover,Advocate
for the appellant.
RAJIVE BHALLA, J (Oral).
The appellant challenges judgments and decrees dated
17.03.2008 and 04.02.2009, passed by the Additional Civil Judge (Senior
Division), Bathinda and the Additional District Judge, Fast Track Court,
Bathinda, decreeing the suit filed by respondent no.1 and dismissing the
appeal filed by the appellant.
The plaintiff/respondent no.1 filed a suit for possession of one
room in House No.1708, Street No.4, Nai Basti, Bathinda on the plea that
she purchased 90 Sq. Yds. out of this property from Kaur Chand vide
registered sale deed No.4377 dated 08.10.1998. The vacant possession
of the house except the room in occupation of the appellant was handed
over to her. It was prayed that as the appellant has no right or interest in
the suit property, a decree for possession be passed.
In opposition to the averments in the plaint, the appellant raised
various objections but, on merits, pleaded that he is son of Kaur Chand and
along with his brothers and sisters constitute a Hindu Undivided family. The
Regular Second Appeal No. 2213 of 2009 -2-
room in his possession was constructed out of joint family funds and was
allotted to him pursuant to an oral family settlement.
On the basis of pleadings of the parties, trial court framed the
following issues and thereafter called upon the parties to lead evidence:-
“1. Whether the plaintiff is entitled to the possession of the
suit property?OPP
2. Whether the suit is not maintainable in the present
form?OPD
3. Whether the plaintiff has no locus standi to file the
present suit?OPD
3(a) Whether suit is not properly valued for the purpose of
court fee and jurisdiction?OPD
3(b) Whether defendants have become owners by way of
adverse possession as alleged?OPD
3(c) Whether suit is bad for non-joinder and mis-joinder of
necessary parties?OPD
3(d) Whether H.No.1708 is co-parcenary and joint hindu
family property of def. no.1 & 2 along with some other
persons, as alleged?OPD
3(e) Whether the sale deed is illegal and without
consideration, as alleged? OPD
4. Relief.”
After considering the pleadings, the evidence adduced and
arguments addressed , the trial court held that respondent no.1 was owner
of the entire property, including the room occupied by the appellant. It was
also held that the appellant had failed to prove that the room was
constructed out of joint family funds or that pursuant to a family settlement
the room fell to his share. Consequently, the suit for possession was
Regular Second Appeal No. 2213 of 2009 -3-
decreed.
Aggrieved by the aforementioned judgment, the appellant filed an
appeal. The Additional District Judge, Bathinda, affirmed the findings
recorded by the trial court and dismissed the appeal.
Counsel for the appellant submits that the courts below were not
justified in rejecting the statements of DW2 Prem Lata and DW3 Pawan
Kumar. They have deposed that as the suit property is ancestral
coparcenary property, and the room in dispute fell to the appellant’s share,
during a family settlement. It is further argued that as these witnesses
have also deposed that the property was constructed out of the Hindu
Undivided Family Funds, the courts below erred in decreeing the suit.
I have heard counsel for the parties, perused the impugned
judgments and express my inability to accede to the arguments raised by
counsel for the appellant. It would be necessary to mention here that the
courts below are concurrent in their opinion that the suit property was
purchased by Kaur Chand vide registered sale deed No.1259 dated
31.05.1962 and was, therefore, his self acquired property. As regards the
room in the appellant’s possession, both the trial court and the first
appellate court have negatived his assertion that this room was constructed
out of the Hindu Undivided Family Funds or fell to his share in an oral
family settlement. I find no error in the impugned judgments as would raise
substantial questions of law sufficient to invoke the jurisdiction of this Court
in second appeal. The submission made by counsel for the appellant that
the courts below have failed to consider the depositions of DW2 and DW3
about the family settlement, the use of Hindu Undivided Family funds for
constructing the room etc. is factually incorrect. A perusal of the impugned
judgments discloses that both the trial court and the first appellate court
have considered the depositions of DW2 and DW3 and rejected them. As
the findings of fact returned by the courts below do not suffer from any
Regular Second Appeal No. 2213 of 2009 -4-
error and as no question of law much less a substantial question of law
arises for consideration, the appeal is dismissed.
July 07, 2009 (RAJIVE BHALLA) nt JUDGE