RSA-5414-2017 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 117 RSA-5414-2017 (O&M) Date of decision: 16.09.2025 Jaspal and others ...Appellant(s) Vs. Hukam Chand (deceased) through his legal heirs and others ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Mandeep K. Saajan, Advocate with Mr. Vikram K. Bishnoi, Advocate for the appellants. *** NIDHI GUPTA, J. The plaintiffs are in Second Appeal against the concurrent judgments and decrees of the Courts below; whereby suit for declaration filed by the appellants, has been dismissed by both the Courts below. 2. It is inter alia submitted by learned counsel for the appellants that the question to be considered is whether under Order 41 Rule 31 CPC, it is incumbent upon the learned First Appellate Court to determine the point of controversy between the parties and then pass the judgment. It is submitted that it was the clear pleaded case of the appellants/plaintiffs that the suit properties were coparcenary in nature. To the contrary, it was the pleaded case of the respondents/defendants that the properties were self acquired. It is submitted that in the event that appellants were unable to prove the nature of the properties as coparcenary, learned Courts below ought to have called upon the defendants to prove that the properties were self acquired. However, this DIVYANSHI 2025.09.18 10:14 I attest to the accuracy and integrity of this document RSA-5414-2017 (O&M) - 2 - has not been done in the present case. Hence, impugned judgments and decrees of the Courts below are unsustainable. 3. It is accordingly prayed that the present Second Appeal be allowed; and the impugned judgments and decrees be set aside. 4. No other argument is raised on behalf of the appellants. I have heard learned counsel and perused the case file in great detail. I find no merit in the submissions advanced on behalf of the appellants. 5. Brief facts of the case are that the instant suit was filed by the appellants/plaintiffs seeking declaration that the plaintiffs are coparceners alongwith defendants in the suit properties as described in the plaint. It was the pleaded by the plaintiffs that the suit properties are ancestral in the hands of their grandfather/defendant No.1-Hukam Chand. Defendant No.2 is the father of the plaintiffs. Hukam Chand had died on 28.03.2008. It is alleged that defendant no.3 namely Ram Murti, nephew of Hukam Chand in an application dated 08.09.2008 filed in the present case, has stated that Hukam Chand had executed a Will in his favour. Plaintiffs had contended that the said Will is false, forged and had no effect on the rights of the plaintiffs over the suit properties. On the other hand, defendants had asserted that the plaintiffs have no right, title or interest in the suit properties as they are private properties. As the defendants had refused to entertain the claim of the plaintiffs, the present suit was filed on 24.04.2006. 6. Vide judgment and decree dated 09.05.2014, the Civil Judge, (Junior Division) Zira dismissed the suit of the plaintiffs. The Appeal of the DIVYANSHI 2025.09.18 10:14 I attest to the accuracy and integrity of this document RSA-5414-2017 (O&M) - 3 - plaintiffs was dismissed by the Addl. District Judge, Ferozepur vide judgment and decree dated 19.10.2016. Hence, present Second Appeal by plaintiffs. 7. It is the clear case of the appellants that the suit properties were ancestral/coparcenary in nature. However, no revenue record was produced by the plaintiffs to prove the ancestral nature of the suit properties. The plaintiffs had failed to adduce any evidence which could establish the nature of the suit properties as coparcenary. Needless to say, onus to prove that properties were ancestral, was upon the plaintiffs. The plaintiffs did not discharge the said onus. As such, plaintiffs cannot claim any share being coparceners in the suit property. The learned Courts below have therefore, correctly held that as the plaintiffs failed to prove the ancestral nature of the suit properties, then the same will be taken as self acquired properties. 8. As regards the Will dated 05.11.2007 Ex.DW1/A produced by Ram Murti/defendant No.3, it was found that the said Will is surrounded in suspicious circumstances and cannot be relied upon. PW5 Sanjiv Sharma, Handwriting and Fingerprint Expert had tendered his affidavit Ex.PW5/A admitting signatures of Hukam Chand on Will Ex.DW1/A, did not match with the standard signature of Hukam Chand. 9. Even otherwise, the present second appeal is liable to be rejected as this Court in Regular Second Appeal has limited jurisdiction to interfere in the concurrent findings of fact returned by the learned Courts DIVYANSHI 2025.09.18 10:14 I attest to the accuracy and integrity of this document RSA-5414-2017 (O&M) - 4 - below. The Hon’ble Supreme Court in M/s. Shivali Enterprises v. Godawari (Deceased) (SC): Law Finder Doc Id # 2034559; has held as under: - “14. This Court, in the case of Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC 71, after considering the scope of interference under the old section 100 of the Civil Procedure Code, 1908 (for short "CPC") and Section 41 of the Punjab Act, has observed thus: "15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.” 15. It could thus be seen that this Court has held that, even when a court exercises jurisdiction under Section 41 of the Punjab Act, it cannot interfere with the findings of fact in second appeal on the ground that the said findings are erroneous, howsoever gross or inexcusable the error may seem to be. It has been held that the findings of fact would also include the findings on the basis of documentary evidence. The jurisdiction under Section 41 of the Punjab Act would be available only when there is a substantial error or defect in the procedure provided by the CPC or by any other law for the time being in force.” (Emphasis added) 10. I find no error or defect in law and procedure is made out in the present case. Therefore, the present Regular Second Appeal is hereby dismissed. 11. Pending applications, if any, stand disposed of. 16.09.2025 (NIDHI GUPTA) Divyanshi JUDGE Whether speaking/reasoned: Yes/No Whether reportable: Yes/No DIVYANSHI 2025.09.18 10:14 I attest to the accuracy and integrity of this document