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.
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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) 2appeal 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) 3chakki 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) 4of 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) 5property. 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) 6transfer 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) 7defendant.”
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