R.S.A.No. 1883 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1883 of 2009 (O&M)
Date of decision: 20.7.2009
Prem Kumar
......Appellant
Versus
Amar Nath and others
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Gourave Bhayyia, Advocate,
for the appellant.
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SABINA, J.
Plaintiff Prem Kumar filed a suit for possession by way of
partition and for permanent injunction restraining defendants No. 1
to 3 from alienating the property to any person. The suit of the
plaintiff was dismissed by the Additional Civil Judge (Sr.Divn.)
Talwandi Sabo vide judgment and decree dated 18.8.2006. In
appeal, the said judgment and decree were upheld by the Additional
District Judge (Fast Track Court), Bathinda vide judgment and
decree dated 27.10.2008. Hence, the present appeal.
Brief facts of the case, as noticed by the lower appellate
R.S.A.No. 1883 of 2009 (O&M) 2
Court in para Nos. 3 to 5 of its judgment, are as under:-
“3. Adumbrated in brief, the facts necessary for the
disposal of this appeal are that Babu Ram, father of the
appellant and respondent No. 1, was owner in possession
of the property. He was karta of the family and the
property was co-parcenary ancestral property in his
hands. That after his death, the appellant is entitled to
1/7th share. That Babu Ram had expired in the year 1964,
therefore, the appellant as elucidated in the head note of
the plaint, is entitled to 1/7th share in the property. That
Babu Ram was owner of the agricultural land also and
mutation No. 6978 dated 21.10.1974 has been
sanctioned in equal share in favour of the appellant and
respondents No. 1 and 6. That Babu Ram had not
partitioned the suit property during his life time and as
such appellant is entitled to claim his share as above said
i.e. 1/7th. The appellant through his power of attorney
came to know that respondents No. 1 to 3 and 5 are
making efforts to alienate the property and respondent
No. 3 Parkash Chand in order to deprive the appellant,
has illegally given 1/3 share from the property No. 1 i.e.
residential house to Raj kumar his son, respondent No. 7
who had handed over the said portion to Mithu Lal son of
Chanan Ram, respondent No. 8. That a suit was filed by
R.S.A.No. 1883 of 2009 (O&M) 3respondent No. 2 namely kesar Chand for obtaining the
ownership and possession of the shop measuring 15′ x
24′, but appellant was not a party to the said suit. Thus
the said judgment had got no bearing upon the rights of
the appellant as in family settlement all the co-sharers
were not a party to the co-promise/ partition, if any. Hence
the present suit.
4. Upon notice, respondents/ defendants appeared
and furnished written statement thereby taking objections
of no locus/ standi and that the appellant has no concern
with the property in dispute, which has fallen to the share
of the respondent during the life time of Babu Ram and
the respondent is in possession of the same house,
whereas shop in question was given to the others i.e.
appellant and other respondents, so the appellant has got
no concern with the house in question.
5. in the written statement filed by respondent-
defendant no. 5 Jagan Nath, it has been averred that
Hans Raj, attorney of the appellant, is also a respondent
no. 4, so the suit is not maintainable. It is further averred
that Kesar Chand filed the suit against respondent no.5
and others, which was dismissed. The appeal was also
decided against Kesar Chand. The respondent no. 5 is
stated to be owner of the property in dispute. Suit is bad
R.S.A.No. 1883 of 2009 (O&M) 4for partial partition. Appellant has concealed the material
facts and that the suit is bad on the principal of
resjudicata. On merits, it has been averred that shop had
fallen in the share of answering respondent. The other
averments were denied one-by-one and prayer for
dismissal of the suit was made.
On the pleadings of the parties, following issues were framed
by the trial Court:-
“1. Whether the plaintiff is owner of 1/7th share in
suit property? OPP
2. Whether the plaintiff is entitled to possession
by way of partition of his share? OPP
3. Whether the suit is properly valued for the
purpose of court fee and jurisdiction? OPP
4. Whether plaintiff has got no locus standi to
file the suit? OPD
5. Whether the suit is not maintainable in the
present form? OPD
6. Whether the house in question measures 15x
100 feet was given to defendant No.3 in family settlement
during life time of Babu Ram, if so its effect? OPD
(defendant No.3)
7. Whether Hans Raj is not competent to act as
general attorney of plaintiff? OPD (defendant No.5)
R.S.A.No. 1883 of 2009 (O&M) 5
8. Whether shop in question measuring 15 x 24
feet fell to share of defendant No.5 in partition, if so, its
effect? OPD (defendant No.5)
8-A Whether the suit is within limitation? OPP
8-B Whether the suit of the plaintiff is barred by
principle of res judicata? OPD 3 and 5.
8-C Whether the suit is bad for partial partition?
OPD 5.
9 Relief. “
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal deserves to be dismissed.
The plaintiff had filed a suit for possession by way of
partition with regard to residential house and shop cum residence.
Both the Courts below after appreciating the evidence on record
have held that the plaintiff had sought partial partition of the joint
property owned by the parties and hence, the suit was not
maintainable.
Both the Courts below have held that as per revenue
record placed on record a Gair Mumkin kiln land measuring 13
kanals 12 Marlas was also owned by the parties. Similarly Gair
Mumkin Chumian measuring 3 kanals 2 marlas as per jamabandi
Ex.D-22 was also jointly owned by the parties. Hence, it was rightly
held by the Courts below that the suit for partial partition was not
maintainable.
R.S.A.No. 1883 of 2009 (O&M) 6
Initially the suit was filed by the plaintiff through his
attorney Hans Raj (real brother- defendant No.4). On an objection
taken by the defendants that defendant No.4 could himself not
pursue the suit, Sunil Kumar filed his power of attorney. Both the
Courts below have observed that Sunil Kumar was not conversant
with the facts of the case and hence, the statement of the attorney
failed to establish the case of the plaintiff. Since, the attorney, who
had appeared on behalf of the plaintiff, had failed to establish the
case of the plaintiff, the Courts below had rightly dismissed the suit of
the plaintiff.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 20, 2009
anita