JUDGMENT
R.L. Anand, J.
1. Unsuccessful plaintiffs Bhagwan Ram and Prem Chand have filed the present appeal and it has been directed against the judgment and decree 2.6.1999 passed by the Additional District Judge, Sangrur who affirmed the judgment and decree dated 22.9.1995 passed by Sub Judge, Ist Class, Sunam who dismissed the suit of the present appellants. Some facts can be noticed as follows :
2. Plaintiffs, filed suit for declaration and mandatory injunction and possession alleging that the appellant No. 1 has 2/9th share and the appellant No. 2 has 1/9th share in the suit land measuring 6 kanals 15 marlas. The said land is near the abadi deh of the village and the appellants are in possession of the suit land. It is alleged that appellants No. 1 and 2 are in joint possession of the suit land. It is further alleged that the appellant and defendants No. 1 and 2 were in possession as co-sharers and no partition has been effected between the parties in respect of the same and as such parties are in joint possession of the suit land. It is further alleged that defendants No. 1, 2 and Vidya Devi daughter of Budh Ram who was father of the appellants had illegally sold the suit land to defendants No. 3 to 7. The said defendants had forcibly raised construction on the share of the appellants. It is further alleged that the appellants are entitled to joint possession of the suit land by removal of the construction raised thereon.
3. The suit was contested by the defendants mainly on the grounds that the suit land had fallen to the shares of the defendants No. 1 and 2 by way of family settlement, from the joint khewat of land measuring 138 kanal 3 marlas. The vendees defendants No. 3 to 7 are in possession of the suit land and their possession is legal and valid: Moreover, the appellants had been witnessing the progress of the construction raised by defendants No. 3 to 7 which was never objected to by the appellants.
4. From the pleadings of the parties the Trial Court framed the following issues :-
1. Whether the plaintiffs are owners in possession to the extent of 1/3rd share in the suit property? OPP
2. Whether the sale deed No. 37 dated 6A1988 alleged to be executed by defendant No. 1 in favour of defendants No. 3 to 6 and sale deed No. 1776 dated 4.7.1988 alleged to be executed by Vidya Devi in favour of defendant No. 2, sale deed No. 990 dated 27.5.1988 alleged to be executed by defendant No. 2 in favour of defendants No. 3 and 5, sale deed No. 960 dated 29.5.1988 alleged to be executed by defendants No. 2 in favour of defendant No. 7 are illegal, null and void? if so, its effect? OPP
3. Whether the plaintiffs are entitled to the decree of mandatory injunction directing the defendants to remove the alleged construction in the suit property? OPP
4. Whether the plaintiffs have no locus standi or cause of action to file the suit? OPD
5. Relief.
5. Aggrieved by the judgment and decree of the trial Court appellants filed First Appeal before the First Appellate Court which dismissed the suit of the appellants for the reasons given in paras No. 9 and 10 as follows :-
“9. It is evident from the statement of appellant Bhagwan Ram that they had been cultivating 40 kanals of land from the khewat since 8-10 years. (PW.3) Chuhar Khan, who is one of the vendees of the respondents No. 1 and 2 had also admitted supporting the case of the respondents that a partition had been effected between the appellants and the respondents No. 1 and 2. It is specific admission of the appellants Bhagwan Ram that as per the compromise dated 16.10.1989 in the presence of respondents, the possession of the parties was changed. The learned counsel for the appellants referring to the decision of Hon’ble Punjab and Haryana High Court in a case Darbara Singh and Anr. v. Gurdial Singh and Anr., cited as 1994 P.L.J. 25 submitted that private partition has to be entered in the revenue record, which was not implemented in the present case. So, when the partition was not implemented, the plea of partition could not be taken by a person. The learned counsel for the appellants has also referred to another decision of Hon’ble High Court of Punjab and Haryana in a case Chander Shekhar and Ors. v. Des Raj and Ors. cites as 1989 P.L.J. page 691, according to which partition of agricultural land could be either (i) by registered document which is given effect to in the revenue record on getting mutation entered and khata separated, or (ii) by getting family settlement implemented by moving the revenue authorities for recognising family settlement and to give effect to the same in accordance with the provisions of Sections 111 to 123 of the Act.
10. The submission made by the learned counsel for the appellants in view of the decision referred (supra) does not appeal to the mind of the Court and I do not find any force in the contentions raised by the learned counsel for the appellants, when admittedly the appellants Bhagwan Ram has stated that they separated their shares from the respondent Nos. 1 and 2 by way of compromise dated 16.10.1989, meaning thereby the private partition inter se the parties was implemented. It is also the plea of the appellants that the suit land is meant for residential purposes as such, the provisions of law referred by the learned counsel for the appellants cannot be invoked in this case. Admittedly, the appellants were out of possession of the suit land, whereas they claimed relief of declaration, mandatory injunction and permanent injunction in their suit. However, they failed to claim consequential relief of possession and the learned lower Court rightly held as per the findings on issue No. 1 that the appellants should have filed a suit for possession as their suit for mere declaration was not maintainable. It is also worthwhile to mention that when the declaration sought for by the appellants was declined to the appellants by the learned lower Court, they were certainly not entitled to challenge the sale deed executed by respondent Nos. 1 and 2 and were also not entitled to the other relief of the suit land. The learned lower Court rightly decided issues No. 2, 3 and 4 against the appellants.”
Feeling aggrieved against the judgment and decree passed by the First Appellate Court, the appellants have filed the present appeal.
6. 1 have heard Shri R.K. Battas, learned counsel appearing on behalf of the appellant and with his assistance have gone through the record of this case.
7. After hearing learned counsel for the appellant, I am of the considered opinion that his appeal is liable to be dismissed in limine. Though an attempt is made to convince this Court that the property in dispute was never partitioned and it is joint property. The alleged partition was never acted upon. It was not reported to revenue Authorities. There is no satisfactory evidence in this regard and in these circumstances suit of the plaintiffs has been wrongly dismissed. Admissions are best evidence on which an opposite party can rely. It has been admitted by Bhagwan Ram plaintiff while appearing in the witness box that the appellants had separated their shares from respondents No. 1 and 2 by way of compromise dated 16.10.1989. Further it has come in evidence that the appellants are residing separately from respondents No. 1 and 2 for the last several years. Further the findings of the Courts below are that the appellants are not in possession of the suit land. In these circumstances, reasonable inference can always be drawn in favour of the defendants that the property in dispute has already been partitioned and the appellants have no right title or interest in the property in dispute and as such they could not file suit seeking partition.
8. It was then submitted by the learned counsel for the appellants, that Smt. Vidya Devi could not transfer any right, title or interest in favour of defendants No. 3 to 7 since she has suffered a consent decree in 1979. This arguments is misplaced. The point of determination is whether the appellants had any share in the land in question and whether the property in question had already been partitioned or not. Once the partitioned had been believed to be family settlement by the Courts below and there is satisfactory evidence to that effect, there is no ground to accept this argument. There is no merit in this appeal and the same stands dismissed in limine.