A Second Appeal under Section 100 of the Code of Civil Procedure is maintainable only on a substantial question of law; the High Court cannot interfere with concurrent findings of fact unless they are perverse or ignore material evidence.

Romesh Verma, Judge (Oral):

The present appeal arises out of the judgment and decree, dated 03.05.2023, as passed by the learned Additional District Judge, Hamirpur, H.P. in Civil Appeal No. 02 of 2018, whereby the appeal preferred by the present appellant has been ordered to be dismissed and the judgment and decree dated 05.12.2017, as passed by the learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. in Civil Suit No. 217 of 2011, have been affirmed.

2. Brief facts of the case are that the present appellant/plaintiff filed a suit for possession by way of partition with respect to the land situated at Jansuh, Mouza Jassai, Tehsil Nadaun, District Hamirpur, H.P. Khata No. 47, Khatauni No. 47, Khasra Nos 39,40,68 and 70, Kitas-4, measuring 0-48-57 hetares located at Mahal Choula Kawal, Mouza Jassai, Tehsil Nadaun , District Hamipur, H.P., Khata No.4, Khatuni No.7 Khasra Kitas 23, measuring 0-80-15 hectares located at Mahal Jansuh, Mouza Jassai, Tehsil Nadaun, Distt. Hamirpur, H.P., Khata No. 6, Khatauni No. 9, Khasra No. 236, measuring 0-04-62 hectares located at Mahal Jansuh, Mouza Jassai, Tehsil Nadaun, Distt. Hamirpur, H.P

3. It was averred in the plaint that the suit land is a joint Hindu Coparcenary and ancestral property of the parties alongwith their coparceners. The plaintiff has got 1/4th share in the suit land . The defendant (since deceased) was a pensioner and getting pension of Rs.2000/- per month. It was further averred in the plaint that the defendant (since deceased) in connivance with other family members threatened the plaintiff to alienate or create charge over the suit property by raising loan. Further he threatened to change the nature of the suit land by raising construction thereupon though he was requested to admit the claim of the plaintiff but he refused to do so.

4. Admittedly, the plaintiff Kamlesh Kumar filed a suit against his father namely Milap Chand, the original defendant. The suit was contested by the defendant by raising various preliminary objections with regard to maintainability, cause of action and estoppel etc. On merits, it was averred that the suit land is not Joint Hindu Coparcenary and Ancestral Property. Therefore, there is no question of any share of the plaintiff in the suit property. The plaintiff is residing in Mumbai for the last more than 20 years and he has no concern with the well being of the defendant. It was further stated that the second son of the defendant namely Naresh Kumar and his family are serving the defendant. Further it was stated that there is no question of alienating, creating charge or raising construction over the suit land. The averments as made in the plaint were refuted and all the allegations as leveled in the same were denied.

5. On the pleadings of the parties, the learned trial court on 25.10.2013 framed the following issues:-

1. Whether the suit land is joint Hindu coparcenary and ancestral property of plaintiff, defendant and others, as alleged? OPP.

2. Whether the plaintiff has got 1/4th share over the suit land, as alleged? OPP.

3. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP.

4. Whether, plaintiff is entitled for decree for possession by way of partition, as prayed for? OPP.

5. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD.

6. Whether the suit is not maintainable, as alleged? OPD.

7. Whether the plaintiff is estopped from filing the suit by his own act and conduc