RSA No. 3754 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 3754 of 2008
Decided on: November 20,2008.
Nishan Singh ......Appellant
Versus
Parkash Kaur and others .....Respondents
Coram Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia
Present Mr. Anil Chawla, Advocate
for the appellant.
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Kanwaljit Singh Ahluwalia, J ( Oral )
Plaintiff failed in two Courts below. The entire
controversy revolves around the fact that the partition proceedings carried
which have culminated upto the Financial Commissioner, have not yet been
given effect to as the date as to when partition is to be take place has not
been determined to. The lower Appellate Court rightly stated that until
actual and physical possession to the co-sharers is given as per the partition
document, there is no question of severence of their relationship as co-
sharers. Both the Courts below have also come to the conclusion that in an
earlier suit filed, plaintiff had stepped into the shoes of his father as a legal
representative and admitted possession of Harbans Singh, from whom
Parkash Kaur, defendant purchased the property. It is because of these two
findings, appellant/plaintiff failed in two Courts below and the counsel
appearing for the appellant/plaintiff has also failed before me to convince
that I should take a different view from the one formulated by the two
Courts below. Having said so, it will be necessary to notice the facts upon
which the concurrent findings have been given by the two Courts below.
It was stated in the plaint by the appellant/plaintiff that
he was a co-sharer of the property along with Harbans Singh son of Bawa
Singh. The details and description of the property have been given in the
head note of the plaint. It was stated that Gurbux Singh, father of
appellant/plaintiff was the original co-sharer. He had died and mutation
RSA No. 3754 of 2008 2
regarding inheritance of Gurbux Singh, father, has been sanctioned in
favour of the plaintiffs. Gurbux Singh, father of the appellant/plaintiffs had
filed an application for partition and for separation of his khatta with other
co-sharers. When the application was pending, defendant no.1 also filed an
application in those partition proceedings that she be impleaded as a party
as she has purchased land from Harbrans Singh son of Bawa Singh, one of
the co-sharers. Details of proceedings pending before the revenue
Authorities and the journey of the litigation which has culminated into the
final order of Financial Commissioner as per counsel for the appellant need
not be enumerated here. The trial Court held that plaintiff had not disclosed
earlier litigation pending between the parties. It also noticed that so far as
the possession of the parties over the suit property is concerned,
appellant/plaintiff Nishan Singh while appearing as PW1 in his cross
examination has specifically admitted that Parkash Kaur defendant is in
possession of the property measuring 9 kanas 10 marls. Respondent-
defendant had also produced a copy of Khasra Girdawari Ex. AX and copy
of jamabandi for the year 2000-01 which reflect that Parkash Kaur,
defendant was in the exclusive possession of the property in dispute. In
view of this admission of appellant/plaintiff Nishan Singh in another suit, it
was held that no injunction can be granted in favour of the
appellant/plaintiff. The Appellate Court also considered the plea raised by
the appellant-plaintiff and held so in para 15 reproduced as under:-
” So, the possession of appellant and respondent no.1 on
the suit land is admitted. It is no doubt true that partition
proceedings have been pending and it is the case of the
appellant and respondent no.5 that in partition, the suit
land has fallen to their share and, therefore, respondents
no.1 to 4 should be restrained from raising construction,
thereon, or from cutting trees, therefrom, till actual and
physical possession, thereof, is given to them. At this
stage, appellant, respondent no.1 and respondent no.5
are co-sharers in the suit land and their relationship as
co-sharers in the suit land and other land shall sever
when actual and physical possession of the suit land is,
RSA No. 3754 of 2008 3indeed, delivered to the appellant and respondent no.5 by
the Collector on the basis of Sanad Partition. So, at this
stage, respondent no.1 has been occupying the suit land
exclusively as co-sharer, therein, and that being so, she
has every right to use the same until partition, thereof,
as, at the time of delivery of possession of suit land to
the appellant and respondent no.5, the vacant possession
of said land shall have to be delivered to them by
respondent no.1 by removing construction raised,
therein, without claiming any compensation from the
appellant and respondent no.5 and if she has cut trees
from the suit land, in that even, the Collector shall assess
value, thereof, which will be paid to appellant and
respondent no.5, by respondent no.1.”
I have heard Sh. Anil Chawla counsel appearing for the
appellant/plaintiff. He stated that substantial question of law involved in
this case is that once the partition proceedings have been accepted upto
Financial Commissioner, therefore, there is a complete severance of
relationship among the co-sharers and preparation of Naksha Azeem in
itself is sufficient to infer that share and possession of the plaintiff is to be
determined as per Sand partition and Naksha Azeem. The question raised
by this Court as to when actual and physical possession was handed over,
he showed his inability to answer. He has relied upon a judgment of this
Court referred in Pritam Singh v. Jaskaur Singh 1992 PLJ 435 to canvass
this point. A perusal of the judgment shows that argument raised has been
not accepted in the judgment. That judgment rather says that when under
Section 121 of Punjab Land Revenue Act, Instrument of partition is
prepared and date is fixed then actual physical possession is to be given
effect to. At this stage, he has shown me a document which only says that
the entries be carried into the revenue record. No evidence or any document
has been prepared that partition on any specific date is to be given effect to,
for delivery of actual physical possession. Until the same is done,
appellant/plaintiff is bound by statement suffered by him in his cross
examination in the previous suit. Therefore, the substantial question raised
RSA No. 3754 of 2008 4on the facts of the case is not made out as facts enumerated and noticed by
two Courts below are sufficient to reject the plea raised
Hence, there is no merit in the present appeal and the
same is hereby dismissed.
November 20, 2008 (Kanwaljit Singh Ahluwalia ) mamta Judge