IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4697 of 2009 (O&M) Date of decision : 5.2.2010 Chander ....Appellant Versus Rame and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Suresh Kumar Redhu, Advocate for the appellant. ..... MAHESH GROVER, J. C.M.No.14118-C of 2009 Allowed as prayed for. C.M.Nos.14119 & 20-C of 2009 in/and R.S.A.No.4697 of 20 09 The instant regular second appeal has arisen by way of a challenge to the judgments of the learned trial court dated 13.6.2009 and that of the first Appellate Court dated 31.7.2009. The appellant/plaintiff filed a suit for possession by way of partition and for permanent injunction as a consequential relief. He pleaded that in Civil Suit No.123 titled Molar versus Hira, which was decided on 25.1.1995, the houses bearing Nos.111, 112, 331, 159, Gali No.159/1 and Houses No.321 and 308/7 had been allotted to the forefathers of the parties namely, Mansakh, Jai Lal and Sultan. In the R.S.A.No.4697 of 2009 (O&M) -2- said properties Jai Lal and Mansakh had 2/3rd share and Sultan son of Tek Chand had 1/3rd share. He pleaded that he along with respondent/defendant No.1 Rame, who is the son of Jai Lal, is entitled to 1/3rd share in equal share in the entire property situated in village Gopalpur, District Kharkhoda. The above said house No.111 measuring 38 Sq. Yards is occupied by the appellant/plaintiff, while in house No.112 defendant No.2 Kartar Singh is residing. House No.331 is occupied by respondent/defendant No.2 to the extent of 2/3rd share and Rame respondent/defendant No.1 to the extent of 1/3rd share. House No.159 measuring 90 sq. yard is occupied by respondent/defendant No.4 and plot No.169/1 has been left as a street. Plot No.321 measuring 311 sq. yards is in possession of the appellant/plaintiff and plot No.308/7 measuring 1566 sq. yards is jointly possessed by the parties. The said properties are still jointly owned and possessed by the parties. Respondent No.1 contested the suit and pleaded that the partition had already taken place as per the family settlement and the parties were in settled possession of their shares. Both the courts concluded that the partition had already been effected and the appellant himself during his testimony had admitted the factum of partition and that the judgment in civil suit No.123 titled Molar versus Hira was never produced on record. It is now contended by the learned counsel for the appellant that the findings are infirm and perverse and this court should interfere into the matter. After hearing the learned counsel for the appellant, I am R.S.A.No.4697 of 2009 (O&M) -3- of the opinion that the contention of the learned counsel for the appellant is totally misplaced. The appellant during the course of his testimony admitted that the suit property has already been partitioned and all the shareholders are in separate possession of their respective shares and construction has also been raised by them. The judgment in Civil Suit No.123 titled Molar versus Hira on which reliance has been placed was also not produced. In view of the categoric admission of the appellant himself that the suit property had already been partitioned amongst the parties, there is no other conclusion that could have been arrived by the courts below. This is a finding of fact which should not have been interfered with. That apart, no substantial question of law arises for the consideration of this Court. Along with this appeal, the appellant has filed an affidavit by way of additional evidence. I am afraid this affidavit at this stage of the proceedings can neither be permitted to place on record nor does it have any persuasive value. Accordingly, the application is dismissed. The appeal therefore is dismissed both on merits as also on the ground of delay. 5.2.2010 (MAHESH GROVER) JUDGE dss