A second appeal is not a forum for re-appreciating findings of fact. Where a family settlement is inferred from settled possession and construction of property, and parties are not joint in mess or residence, the findings of the lower courts are upheld unless a substantial question of law exists.

Reserved on 11th of February, 2026

Pronounced on 11th of May, 2026

Uploaded on 12th of May, 2026

Whether only operative part of the judgment is pronounced? No

Whether full judgment is pronounced? Yes

PANKAJ JAIN, J.

Plaintiff is in second appeal.

For convenience and to avoid confusion, the parties hereinafter are referred to as by their original position before the Court of the First Instance, i.e., the appellant as ‘plaintiff’, respondent No.1 as ‘defendant No.1’ and respondents No.2 to 5 as ‘proforma defendants’.

Plaintiff filed suit for possession by way of partition of the ancestral houses situated within the abadi deh of village Rupomazra, Tehsil & District Ambala.

As per plaintiff, the house property is an ancestral property which was owned by Ram Kishan. The defendants as well as the plaintiff are all sons of Ram Kishan. Ram Kishan died on 25.11.2010. On 04.08.2013, defendant No.1 denied entry of the plaintiff in the house(s) in question. He further submits that an amount of Rs.1,07,320/- was transferred from the saving account of father Ram Kishan to the account of defendant No.1. Thus, the plaintiff is also entitled for his share from the same.

Suit was contested by defendant No.1. He denied that the suit property is ancestral or is a joint Hindu family property. Defendant No.1 claimed that on partition the suit property fell into his share on the basis of mutual family settlement.

Suit filed by the plaintiff was put to trial by the Court of the First Instance, framing following Issues:

1. Whether the plaintiff is entitled to the relief of possession by way of partition? OPP

2. Whether the plaintiff is entitled for recovery of Rs.26,220/- along with interest @ 18% per annum as mentioned in the plaint? OPP

3. Whether the suit of the plaintiff is not maintainable in the present form? OPD

4. Whether the suit of the plaintiff is false and has been filed by concealing the true facts? OPD

5. Whether the plaintiff has not affixed proper court fee on the plaint? OPD

6. Relief.

The Court of the First Instance held that the plaintiff was required to prove ancestral nature of the suit property. He failed to prove the same. Though, he claimed that the property was a joint Hindu family property, but failed to prove nucleus from which the property was purchased. It being an admitted case that the parties are neither joint in mess nor in residence, the property cannot be held to be a joint property. The Court of the First Instance however, answered Issue No.2 in favour of the plaintiff and held him entitled to his share of Rs.17,887/- out of the amount of Rs.1,07,320/- transferred to the account of defendant no.1 on death of Ram Kishan. Suit filed by the plaintiff was accordingly decreed in part.

Unsuccessful plaintiff filed appeal.

The Lower Appellate Court affirmed the findings recorded by the Court of the First Instance and dismissed the appeal filed by the plaintiff.

I have heard counsel for the parties and have gone through records of the case.

The plaintiff did not lead any evidence to prove ancestral nature of the property. But the fact that defendant No.1 pleaded that same has fallen to his share by way of family settlement proves that the property was owned by family jointly. Thus, the burden shifted upon defendant No.1 to prove the family settlement. It is conceded position of fact that the parties partitioned their agricultural property long back. They are neither joint in mess nor in residence. Plaintiff is residing in Mumbai. The houses in question have been constructed by defendant No.1. He is in settled possession thereof. These facts lead to the inference that house(s) fell to the share of defendant No.1.

This Court finds that the issue would be squarely covered in favour of the defendant No.1 in view of the dictum of law laid down by Supreme Court in the case of Kale and others vs. Deputy Director of Consolidation and others , (1976) 3 SCC 119 observing as under:

10. In other words to put the binding effect and t