Suraj Mal alias Surjan vs Nafe Singh and Others

Ram Chand Gupta, J.

C.M. Nos. 8164-8165-C of 2011

In view of the facts mentioned in the applications, delay of 47 days in filing and 108 days in refiling the appeal is condoned.

Both the applications stand disposed of accordingly.

C.M. No. 8166-C of 2011

Application is allowed subject to all just exceptions.

RSA No. 2946 of 2011

The present regular second appeal has been filed against judgment and decree dated 20.9.2010 passed by learned Additional District Judge,

Jind, vide which appeal filed by present Appellant against judgment and decree dated 3.10.2009 passed by learned Civil Judge, (Senior Division),

Jind, decreeing the suit filed by Respondents-Plaintiffs, was dismissed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including both the judgments passed by learned

Courts below.

Briefly stated, Respondents-Plaintiffs filed a suit for a decree for declaration and mandatory injunction by taking the plea that Appellant-

Defendant No. 4 has been wrongly recorded as owner in possession of the land in dispute in the revenue record, whereas Respondents-Plaintiffs

are owners in possession of the land in dispute to the extent of their share as they inherited the same from Smt. Phulpati, wife of present Appellant.

Admitted facts are that land in dispute was inherited by wife of present Appellant, Smt. Phulpati from her parents. Appellant-Defendant No. 4

had placed reliance upon a Will allegedly executed by his wife in his favour. However, there is No. dispute that the said Will was set aside in

another suit filed by present Appellant-Defendant No. 4. These facts have been admitted by Appellant-Defendant nol.4 in his cross-examination as

well. He has also not disputed the inter se relationship between the parties. As per Section 15 (2)(a) of the Hindu Succession Act, 1956, the

property in dispute, which was inherited by Smt. Phulpati from her parents, who died issueless, is to devolve upon heirs on the side of her parents.

Accordingly, both the Courts came to the conclusion that the property would be inherited by Respondents-Plaintiffs, as per their respective shares,

as mentioned in judgment and decree passed by learned trial Court. It has also been rightly observed by learned courts below that as the present

suit has been filed on the basis of title, it cannot be said that the same is barred by limitation.

Hence, in view of these facts, it cannot be said that any illegality has been committed by the Courts below in passing the impugned judgments

and decrees. Finding recorded by the Courts below is fully justified by the evidence on record and is supported by cogent reasons. The said

finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not

warrant interference in this second appeal. No. question of law, much less substantial question of law, arises for determination in this second

appeal. Accordingly the appeal is dismissed in limine.