JUDGMENT : Pramod Kumar Srivastava, J. Heard learned counsel for the appellant. This is defective time barred second appeal. Heard on point of disposal of delay condonation as well as on point of application admission of appeal. 2. The plaintiff had filed suit for permanent injunction against sole defendant, her real sister. The plaint case in brief was that she is exclusive owner of disputed property and defendant is unauthorizedly attempting to interfere in plaintiff's possession, therefore, defendant be restrained by means of permanent injunction. In written-statement, the defendant denied the plaint averments and pleaded that disputed property belonged to the father of the parties, and after his death the plaintiff and defendant became the co-owners of equal half share each in disputed property. Plaintiff had filed suit on basis of incorrect facts and is liable to be dismissed. 3. After affording opportunity of hearing to the parties, the Additional Civil Judge, Senior Division Addl. Judge/Small Cause Court, Aligarh had dismissed the suit by its judgment dated 26.08.2014 with the finding that plaintiff and defendant are joint owner of half share each of disputed property and are in joint possession. The plaintiff had failed to prove her case of exclusive ownership and suit is liable to be dismissed. 4. Against the judgement of trial court, Civil Appeal No. 172 of 2014, Sakuntala Devi v. Smt. Kamlesh, was filed, which was heard and dismissed by the judgement dated 23.10.2015 by Additional District Judge, Court No.-11, Aligarh with the finding that the original owner of disputed property were Jai Charan and Sheo Charan (the father of the parties). The plaintiff and defendant being real sister inherited the property after death of their father and they are in joint owner of equal share in this property. Therefore the judgement of the trial court is not incorrect, and appeal is dismissed. 5. Against the judgements of trial court as well as the first appellate court present second appeal has been filed by plaintiff of the original suit. 6. Learned counsel for the appellant contended that even if it is accepted that the appellant is co-owner of the disputed property, in that case she is admittedly in possession of the some portion of this property and her possession should have been protected by courts below by permanent injunction. This contention of learned counsel for the appellant is totally unacceptable.
Learned counsel for the appellant contended that even if it is accepted that the appellant is co-owner of the disputed property, in that case she is admittedly in possession of the some portion of this property and her possession should have been protected by courts below by permanent injunction. This contention of learned counsel for the appellant is totally unacceptable. It has been proved on the basis of evidences adduced before the lower court that parties are in joint ownership of equal share of disputed property which has not been partitioned, therefore any relief of injunction would deprived the defendant-respondent to exercise her ownership right of disputed property, therefore the appellant is not entitled for any relief sought in plaint. 7. Apart from it, it has already been held by lower court, which is proved by the evidences and acceptable concurrent finding of the fact. Plaintiff had been concealing the true facts and have not come with clean hand before the Court. In these circumstances, she is not entitled for the relief sought in the plaint. Since, the plaintiff and defendant have been held in joint possession of disputed undivided property, therefore, the without partition no party can claim exclusive right any particular portion of it. Therefore she is not entitled for injunction over that portion of disputed property which may be in her actual possession. So such she is not entitled to any relief. 8. The conclusions of both the lower courts are based on proper appreciation of evidences and apparently acceptable findings which are apparently correct. Those findings are neither infirm nor perverse. Such findings of facts cannot be interfered with re-appreciation in the Second Appeal. 9. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and based upon proper appreciation of the entire evidence on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. No question of law much less a substantial question of law is involved in this case before this Court. None of the contentions of the learned counsel for the appellant-defendant can be sustained. 10.
No question of law much less a substantial question of law is involved in this case before this Court. None of the contentions of the learned counsel for the appellant-defendant can be sustained. 10. The appeal has been filed beyond period of limitation, and no proper or sufficient reason for condonation of delay is given. So delay condonation application is dismissed. 11. If delay condonation application would have been allowed, even in that case also, on merits, as discussed above, the appeal cannot be admitted. 12. In view of the above, the delay condonation application and also this defective Second Appeal is dismissed.