CSA/4/2008 of JASWANT SINGH Vs RANJIT KOUR on 30 December 2010

1) VVnether approved for reportingin Press/Journal/Media#Yes/NoII)VVhetner to be reportedin Digest/JournalYes/No The appellant-Jaswant Singh filed a Suit for permanent prohibitory injunction restraining the respondent-Ranjit Kour,from alienating House comprising of three rooms, one bath|room anda latrine situated at Hazuri Bagh, Jammu, on the plea.that he had constructed it out of hiS own funds, and the.respondent, his brothers widow, who was allowed to live and|reside therein, as a licensee, had no right to dispose it of. |

Contesting the Suit, the respondent pleaded the Suithouse to have been constructed by her husband on the land.which had fallen to his share, denying that she was living there|with the permission of the appellant.

To decide the Suit, the parties were put to issues, whichare reproduced hereunder:- a 1}Whether the plaintiff is exclusive and realowner of the house comprised of three rooms,one path room, one latrine situated at Hazur!|Bagh, Gole Gujral, Jammu and defendants are selling the house without any legal right’? |OPP

6Whether mother of the plaintiff Smt. MathriDevi executed a Will Deed tn favour ofplaintiff with respect to the Suit property on07.11.1988 and registered on the same dayby the Sub-Registrar, Jammu, if so, what Isits effect? |OPP

3}If Issue No.1 is not proved in affirmative,whether the Suit house iIs_ exclusivelconstructed, owned and possessed bydefendant and she has right to alienate It?

OPD

4}Relief.

After appreciating the evidence, which the parties tothe Suit had led, the trial Court came to the conclusion thatthe plaintiff had failed to prove his ownership over the Suitnouse. Ine Will executed by the appellants mother In nis.favour, though held proved, was not relied upon by theCourt as it stood questioned by the children of therespondent before the Ist Additional Munsitf, Jammu and)even otherwise did not pertain to the nouse In question. | ne appellants Suit was accordingly dismissed vide Judgmentdated August 30, 200d.

The Ist Appellate Court too did not find any merit in theappellants Appeal and therefore dismissed it vide itsJudgment of November 12, 2007.

The finding returned by the trial Court that theappellant nad proved the Will executed by nis mother In his"favour, was, however, found untenable by the Ist AppellateCourt because the Will was not found by it to have beenproved, as required by law.

Tne Decrees and Juagments recorded py the trialCourt and the Ist Appellate Court have been questioned bythe appellant in this Civil Second Appeal.

The appellants learned counsel seeks the admissionof the Appeal to hearing, which according to him, raisedfollowing substantial questions of law :-.

1}Whether the house naving been constructed on)the property left by Mathri Devi, gives any right to.the respondent to claim ownership over It?

2}Whether the Will, not specifically disputed by the|defendant, was required to be _ proved iaccordance with law?

3}Whether the appellant had become owner of the.property by operation of the Will and the.respondent had no right to alienate it’?

Learned counsel for the respondent, on the otherhand, submitted that the Second Appeal was_ notmaintainable against concurrent findings of fact recorded bythe two Courts and that it did not raise any substantialquestion of law because the questions raised by theappellant were not substantial questions of law.

Considered the submissions of learned counsel! for theparties and perused the judgments of the Courts below.

Arguments

The appellant, through his Suit, had sought apermanent injunctive direction against the respondent,pleading that he was the owner of the Suit house because it.was he wno had raised Its construction. |o support nis plea|of ownership over the Suit house, he had additionally reliedupon the Will executed by his mother in his favour.

The appellant neither produced the Scribe of the Willnor the persons who are snown to nave witnessed It. [ne)finding of the Appellate Court that the Will was not provedby the appellant is, therefore, unexceptionable. Both the.Courts have concurrently held on facts that the appellanthad failed to prove him to have constructed the house.which on the basis of the evidence led by the parties, was"found to have been constructed by the respondentshusband.

In these circumstances, no substantial question of lawas contemplated by Section 100 of the Code of CivilProcedure, arises in the case.

Tne questions proposed by the appellant in the Memoof Appeal as substantial question of law, neither arise out ofthe case nor can these, by any stretch of reasoning, be saidto be substantial questions of law.

In terms of the provisions of Section 100 of the Codeof Civil Procedure, a Civil Second Appeal lies only if itinvolved substantial questions of law.

The appellants Appeal having been found not to raiseany substantial question of law, still less a question of lawmay not thus warrant its admission to hearing, for thefindings of fact recorded by the two Courts, are otherwisewell merited.

This Civil Second Appeal is, therefore, dismissed inimine.

JAMMU30.12.2010|Pawan Chopra*|

(J. P. Singh)|

Judge|