Second appeal by plaintiff against revision deleting defendants' shares. Court found appeal misconceived as lower appellate court maintained appellant's affirmed share and granted necessary relief. Appeal dismissed in limine.
Appeal dismissed in limine; appellant's grievance is redressed by lower appellate court.
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REGULAR SECOND APPEAL No.3904 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA NO.3904 OF 2009 DATE OF DECISION: JANUARY 12, 2011
Nachhattar Dass
.... Appellant
Versus
Jagtar Dass and others
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
PRESENT: Mr. V. K. Shukla , Advocate for the appellant.
L.N. MITTAL, J. (ORAL)
CM NO.11943-C of 2009
Allowed as prayed for.
CM NO.11944-C of 2009
For reasons mentioned in the application, which is accompanied by affidavit, delay of 26 days in filing the appeal is condoned.
Main Case
Plaintiff Nachhattar Dass is in second appeal.
Plaintiff filed suit seeking declaration that he and defendants No.1 to 7 (five sons, widow and two daughters of Harnam Dass) are owners in possession in equal share to the extent of 1/3rd share of Harnam Dass in the land described in the plaint.
Learned trial court vide judgment and decree dated 07.02.2001
REGULAR SECOND APPEAL No.3904 of 2009
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decreed the plaintiff's suit. In first appeal preferred by defendant No.8 Jaswant Singh (who had purchased the share of defendant Nos.1, 3 and 4), learned Additional District Judge, Moga vide judgment and decree dated 05.05.2009 modified the judgment and decree of the trial court but 1/8th share of plaintiff-appellant in 1/3rd share of his father Harnam Dass in the suit land has been maintained. However, defendant Nos.1, 3 and 4 have been found to be having no share left in the suit land, having sold it to defendant No.8. Feeling aggrieved plaintiff has filed the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
Learned counsel for the plaintiff-appellant contended that defendant Nos.1, 3 and 4 sold land in excess of their share on the basis of mutation sanctioned on the basis of Will i.e. 1/5th share each of plaintiff and defendant Nos.1 to 4 and, therefore, judgment and decree of the lower appellate court deserve to be modified. The contention is misconceived and untenable. Learned lower appellate court has specifically observed that the sale deed Exhibit D-1 by defendant Nos.1, 3 and 4 in favour of defendant No.8 shall be valid only to the extent of the share inherited by them from their father Harnam Dass on the basis of natural succession and not on the basis of impugned mutation No.9390 which is null and void. Consequently, the aforesaid grievance, raised by counsel for the appellant, already stands redressed by the lower appellant court. Moreover, lower appellate court has affirmed 1/8th share of the plaintiff-appellant in 1/3rd share of his father Harnam Dass in the suit land
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REGULAR SECOND APPEAL No.3904 of 2009
and therefore plaintiff-appellant could have no grievance against the judgment and decree of the lower appellate court.
For the reasons aforesaid, I find that the instant appeal is completely misconceived and meritless. No question of law, much less substantial question of law, arises for determination in this second appeal. In fact even lower appellate court has granted necessary relief relating to share of the plaintiff-appellant as sought by him in the suit. Accordingly, the appeal is dismissed in limine.
(L. N. MITTAL) JUDGE
12.01.2011
'raj'
3 issues framed by the court
Whether appellant could raise grievance regarding affirmed share in suit land. Whether any question of law arose in this second appeal. Whether the appeal was acceptable.
Whether lower appellate court granted necessary relief seeking in the suit.
Whether instant appeal is meritorious or misconceived.
Nachhattar Dass
Jagtar Dass and others
L. N. Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
