High Court Punjab-Haryana High Court

Hari Parkash vs Ram Kumar on 17 December, 2009

Punjab-Haryana High Court
Hari Parkash vs Ram Kumar on 17 December, 2009
R.S.A.No. 2299 of 2007 (O&M)                                     1



      In the High Court of Punjab and Haryana at Chandigarh


                        R.S.A.No. 2299 of 2007 (O&M)
                        Date of decision: 17.12.2009


Hari Parkash
                                                       ......Appellant
                        Versus


Ram Kumar
                                                    .......Respondents


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:   Mr.Anil Kshetarpal, Advocate,
           for the appellant.

           Mr.Jitender Singla, Advocate,
           for the respondent.

                 ****

SABINA, J.

Plaintiff-appellant filed a suit for separate possession by

way of partition and permanent injunction, which was dismissed by

the Civil Judge (Jr.Divn.), Jagadhari vide judgment and decree dated

17.2.2005 . In appeal, the said judgment and decree were upheld

by the Additional District Judge, Jagadhari vide judgment and decree

dated 14.3.2007. Hence, the present appeal.

Brief facts of the case, as noticed by the lower appellate

Court in para Nos. 2 and 3 of its judgment, are as under:-

“2. The brief facts leading to filing of the present
R.S.A.No. 2299 of 2007 (O&M) 2

appeal are that the plaintiff who is real uncle of the

defendant has filed the present suit against the defendant

inter alia on the grounds that the parties to the suit are

joint owners of the disputed property. He is owner of 2/3rd

share whereas defendant has 1/3rd share in the disputed

property. The dispute property has not been partitioned

by metes and bound and now the plaintiff does not want

to keep his share joint with the defendant. He asked the

defendant to get the disputed property partitioned, but, he

put off the matter on one pretext of the other and

ultimately, few days back he was threatened to alienate

the specific portion of the disputed property or to change

the existing position by raising further construction without

right to do so. Hence, this suit.

3. On notice, defendant appeared and filed his

written statement controverting the claim put forth by the

plaintiff. The relationship between the parties has been

admitted. However, it is alleged that the disputed

property and other properties belonging to the family was

partitioned vide partition deed dated 10.7.1987 and in

pursuance thereof the disputed property had fallen to the

exclusive lot of Om Parkash, father of the answering

defendant and thereafter, the answering defendant has

constructed his residential house and established an atta
R.S.A.No. 2299 of 2007 (O&M) 3

chakki in the disputed property. It is alleged that revenue

entries are also in favour of the answering defendant.

The plaintiff never objected to construction of residential

house or establishment of atta chakki by the answering

defendant over the disputed property, but, now after a

period of 15 years he has filed the present suit with

malafide intention. While denying all the other averments

made in the plaint it is alleged that the suit of the plaintiff

is not maintainable and the same is bad for partial

partition as whole property of the family has not been

included in the suit as well as for non-joinder and mis-

joinder of the necessary parties. The plaintiff is guilty of

concealment of material facts and has no locus standi to

file the present suit. The suit is false and frivolous and is

liable to be dismissed with special costs under Section

35-A CPC. Thus, dismissal of the suit was prayed for.”

On the pleadings of the parties, following issues were

framed by the trial Court:-

1. Whether the plaintiff is entitled to separate

possession by partition of 2/3rd share of the suit

property? OPP

2. If the above issue is proved, whether the plaintiff is

entitled to the relief of permanent injunction? OPP

3. Whether the suit is bad for non-joinder and mis-joinder
R.S.A.No. 2299 of 2007 (O&M) 4

of parties? OPD

4. Whether the suit is not maintainable and liable to be

dismissed with special costs? OPD

5. Relief.

Learned counsel for the appellant has submitted that

there was no dispute regarding the fact that Ex.D-1, alleged family

partition, could be looked into for collateral purposes as the same

was not registered. However, the said family partition had never

been acted upon. The plaintiff had sold the khasra number which

had allegedly come to the defendant Om Parkash by way of family

settlement. From this, it was evident that, in fact, the partition Ex.D-1

had never been acted upon.

Learned counsel for the respondent, on the other hand,

has submitted that the family partition Ex.D-1 had been duly acted

upon.

After hearing learned counsel for the parties, I am of the

opinion that the present appeal deserves to be dismissed.

Learned Additional District Judge, while dealing with the

argument raised by learned counsel for the appellant, has held as

under:-

“35. Learned counsel for the appellant has drawn my

attention to certain documents to show that the alleged

mutual partition dated 10.7.1987 was never acted upon

as all the three brothers have been dealing with the suit
R.S.A.No. 2299 of 2007 (O&M) 5

property. It is pertinent to mention that during the

pendency of the appeal an application was filed by the

appellant for leading the additional evidence. Said

application for additional evidence was allowed by my

learned Predecessor vide order dated 28.9.2005 and the

plaintiff-appellant has produced the documents Ex.P-4 to

Ex.P-13 in additional evidence during the pendency of the

appeal. Ex.P-4 is the copy of plaint of civil suit No.550

filed on 19.7.1995 by defendant Ram Kumar against his

father Om Parkash for seeking declaration to the effect

that he is owner in possession of the land measuring 2 K-

13M being 1/3rd share of land measuring 8 kanals

comprised of khasra No.26//31 (8-0). In this suit Om

Parkash father of the defendant had filed admission

written statement, copy Ex.P-5 and the said suit of

defendant Ram Kumar was decree vide judgment dated

26.9.1995, certified copy Ex.P-6. Certified copy of decree

sheet is Ex.P-8. On the basis of this decree mutation

No.483 dated 22.11.1995, copy Ex.P-10 was sanctioned

in favour of defendant Ram Kumar. These documents

cannot show that mutual partition was not acted upon

because Om Parkash has transferred 1/3rd share out of

khasra no.26//31 in favour of his son Ram Kumar. It may

be possible that Om Parkash might have intended to
R.S.A.No. 2299 of 2007 (O&M) 6

transfer only 1/3rd share out of this khasra number to his

son Ram Kumar. Ex.P-9 is the copy of mutation No.428

which shows that Som Dutt has transferred his land in

favour of plaintiff Hari Parkash vide civil court decree

dated 5.4.1991. He also transferred 1/3rd share out of

khasra No.26//31 to plaintiff Hari Parkash. There is no

evidence to show that defendant Ram Kumar or his father

Om Parkash were party to the civil court decree dated

5.4.1991 or any notice was given to the defendant or his

father Om Parkash at the time of sanctioning of mutation

No.428 dated 20.7.1992 on the basis of said decree.

Mutation Ex.P-11 shows that plaintiff Hari Parkash has

sold his land to Magesh Kumar etc. vide sale deed dated

3.12.2003. Khasra No.26//31 does not figure in this

mutation. Similar is the position regarding mutation

No.12 vide which Hari Parkash plaintiff has sold his land

to Om Parkash etc. vide sale deed dated 17.12.2003. In

this mutation also khasra Number 26//31 does not figure.

In the copy of jamabandi Ex.P-13 for the year 2000-2001

ownership of the plaintiff has been shown to the extent of

2/3rd share in khasra no.26//31 which is obvious because

mutation partition was never reported to the revenue

authorities, however, this entire khasra number has been

shown in possession of Ram Kumar co-sharer i.e.
R.S.A.No. 2299 of 2007 (O&M) 7

defendant.”

Thus, the appellant had failed to establish that the khasra

number, which had come to the share of defendant as per Ex.D-1,

had been sold by the appellant. Learned counsel for the appellant

has failed to counter the observations made by learned Additional

District Judge.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

(SABINA)
JUDGE
December 17, 2009
anita