Punjab-Haryana High Court
Smt.Dhanno vs Radhey Shyam And Others on 1 September, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Regular Second Appeal No.822 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Regular Second Appeal No.822 of 2011
Date of Decision:-1.9.2011
Smt.Dhanno ...Appellant
Versus
Radhey Shyam and others ...Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Sandeep Singh Ghangas, Advocate for the appellant.
Mr.Surinder Singh Virk, Advocate for the respondents.
Mehinder Singh Sullar, J. (Oral)
Tersenessly, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, are that Smt.Dhanno daughter of Ram Singh appellant-plaintiff (for brevity "the plaintiff") filed the suit against Radhey Shyam and others respondent-defendants (for short "the defendants") seeking a decree for possession by way of preferential right to acquire the share of defendant Nos.2 to 6 under section 22 of the Hindu Succession Act, 1956 (hereinafter to be referred as "the Act"), inter-alia pleading that Ram Singh son of Risala was the owner and in possession of agricultural land in dispute, situated within the area of village Machhroli, Tehsil Samalkha, District Panipat. After death, his widow Rukmani, daughters Chandro, Dhanno, Shanti, Premo & Santosh and sons Hawa Singh, Balbir Singh & Jagira inherited the property in question in natural succession. Defendant Nos.2 to 11 were stated to have entered into an agreement dated 28.1.1990 to sell the land measuring 24 kanals 0 marla, being 480/622th share out of land measuring 31 kanals 2 marlas in dispute with defendant No.1. The suit to enforce the agreement to sell filed by defendant No.1 was partly decreed by the Regular Second Appeal No.822 of 2011 -2- trial Court, by means of judgment and decree dated 18.8.1999 (Ex.D6 and Ex.D7) respectively, wherein minor defendant Nos.2 to 5 were held to be not bound by the agreement on account of their minority. It is not a matter of dispute that the decree has already attained the finality.
2. The plaintiff claimed that since she is successor and co-owner of the property with the defendants, so, she has a preferential right to acquire the disputed property. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of possession against the defendants in the manner indicated hereinbefore.
3. Although defendant Nos.2 to 11 filed their written statement admitting the claim of the plaintiff, however, defendant No.1 contested the suit and filed the written statement, inter-alia raising certain preliminary objections of maintainability of the suit, cause of action and locus standi of the plaintiff. According to the contesting defendant that plaintiff is not daughter of Ram Singh, rather she is an imposter. Since she alongwith her sisters had transferred the suit land in favour of defendant Nos.2 to 4, vide civil court decree, so, she is no more a co-sharer and has left with no interest in the property in dispute. The factum of decree passed in civil suit for a decree of specific performance of agreement to sell and attaining its finality was admitted. It will not be out of place to mention here that the contesting defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.
4. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case.
5. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands.
6. The trial Court dismissed the suit of the plaintiff, by virtue of impugned judgment and decree dated 18.8.2009.
Regular Second Appeal No.822 of 2011 -3-
7. Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 23.2.2010.
8. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present appeal. That is how I am seized of the matter.
9. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the present appeal in this context.
10. As is evident from the record that the plaintiff has sought the decree for possession on the basis of preferential right to acquire the property under section 22 of the Act that she is co-owner alongwith her brother in the property inherited by them from Ram Singh. What is not disputed here is that the plaintiff had already transferred her share in respect of the suit property in favour of Jagira, Balbir and Chandro, through the medium of judgment and decree dated 8.1.1990 (Ex.D2 and Ex.D3) respectively. Sequelly, the mutation bearing No.2394 has already been sanctioned by the revenue officer, in pursuance of the indicated judgment and decree. In that eventuality, the plaintiff has left with no right in the joint property and she cannot invoke the provisions of Section 22 of the Act.
11. As described above, the civil suit for specific performance of agreement to sell dated 28.1.1990 has already been decreed by the trial Court on 18.8.1999, which was upheld and attained the finality upto this Court. Therefore, to me, the trial Court has rightly negatived the claim of the plaintiff in this respect. Not only that, the decision of the trial Court was affirmed by the first appellate Court, by virtue of impugned judgment dated 23.2.2010, which, in substance, is (para 12) as under:-
"Now the short point to be seen by this court is as to whether the plaintiff has any preferential right to acquire the share of defendants no.2 to 6 which they intended to transfer in favour of defendant no.1 vide Regular Second Appeal No.822 of 2011 -4- agreement to sell dated 28.1.1990. In this connection, it is clearly established that when the plaintiff had suffered a decree in respect of her share in the property in favour of Jagira, Balbir and Chandro vide judgment and decree dated 8.1.1990 copies of which are Exhibit D2 and Exhibit D-3 respectively and mutation on the basis of the decree was also sanctioned by the revenue officer vide mutation no.2394 copy of which is Exhibit D1 then the plaintiff left with no right in the property and as such if any agreement has been entered by defendants no.2 to 11 in favour of defendant no.1, the same cannot be in any way give right to the plaintiff to seek any preferential right which tantamount to challenge the decree passed by the court of Additional Civil Judge (Senior Division), Panipat dated 18.8.1999 for specific performance of the agreement to sell dated 28.1.1990 which has been up-held upto the Hon'ble Punjab and Haryana High Court. So learned lower court has rightly concluded that the plaintiff has no cause of action and the suit seems to have been filed by defendants no.2 to 11 in collusion with the plaintiff in order to get the judgment and decree obtained by defendant no.1 in a suit for specific performance of agreement set aside. Bharat Machindra Parekar and anr's case (supra) relied by learned counsel for the plaintiff-appellant is not applicable to the facts of the present case as the plaintiff left with no right, title or interest in the suit land, therefore, she cannot be held to have any interest in the property what to talk of her preferential right to purchase the property. Therefore, I do not find any error of law or fact in the findings returned by the learned lower court and accordingly the findings of learned lower court on all the issues are hereby, affirmed."
12. The learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to show as to how and in what manner, the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant behalf.
13. Meaning thereby, the Courts below have taken into consideration and appreciated the entire evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the above-mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot Regular Second Appeal No.822 of 2011 -5- possibly be interfered with by this Court, while exercising the powers conferred under section 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-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.
14. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff to assail the findings of the Courts below in this respect. 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.
15. Likewise, 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 the obtaining circumstances of the present case.
16. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such.
(Mehinder Singh Sullar) 1.9.2011 Judge AS Whether to be referred to reporter?Yes/No