R.S.A.No. 1768 of 2008(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1768 of 2008(O&M) Date of decision: 22.3.2011 Raj Kumar ......Appellant Versus Chandarwati .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. P.S.Goraya, Advocate for the applicant- appellant. Mr.Adarsh Jain, Advocate, for respondent No.7(i), 8 to 12 and 14. **** SABINA, J. The plaintiff had filed a suit for partition and permanent injunction. The case of the plaintiff in brief was that he had purchased land measuring 10 kanals, out of a chunk of land, bearing khasra No.17/2 (6-17), 18/1/2 (3-13) from Baksha Ram and others vide sale deed dated 11.3.1996. Defendant No.1 had purchased some land vide sale deed dated 5.6.1975 and defendants No. 2 to 6 had purchased 13 marlas of land vide sale deed 21.9.1977. Defendant No.7 had purchased 19 marlas of land vide sale deed dated 11.10.1979. Thus, the plaintiff and defendants had become co-sharers in the suit property. Defendants No.8 to 16 were also in occupation of some of the land. The defendants were intending to raise unauthorised construction on the entire suit property with R.S.A.No. 1768 of 2008(O&M) 2 intention to deprive the plaintiff of his right to enjoy the 10 kanals of land purchased by him. Defendant No.1, in her written statement, denied the contentions in the plaint. It was averred that she and other defendants had purchased the land from Krishan Kumar Singh vide registered sale deed dated 5.6.1975 and had constructed her residential house thereon. The plaintiff had no concern with the suit property. The land had been partitioned by the co-sharers. The plaintiff had never remained in possession of the suit land. Defendant Nos. 2 to 6, in their written statement, averred that they had purchased the land depicted with letters EFGB in the site plan vide registered sale deed dated 21.9.1977. The defendants were residing in their residential house for the last more than 20 years. The defendants were bona fide purchasers for consideration. Defendants No. 8 to 10, 12, 13 and 15, in their written statement, averred that the suit property was situated within the municipal limits of Palwal town. The residential houses of the defendants were in existence for the last more than 12 years. The sale deed set up by the plaintiff in his favour was a fictitious document. The land had been partitioned by the co-sharers by way of family settlement. The said written statement was sought to be read on behalf of the legal representatives of defendants No.7 and 14. Defendants No.11 and 16 were proceeded ex parte. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to decree for partition in R.S.A.No. 1768 of 2008(O&M) 3 respect of the property in dispute? OPP. 2. Whether suit is not maintainable in the present form ? OPD 3. Whether plaintiff has no locus standi to file the present suit ? OPD 4. Whether suit is bad for non joinder for necessary parties ? OPD 5. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 14.12.2004. Appeal filed by the plaintiff against the said judgment and decree was dismissed by the Additional District Judge vide judgment and decree dated 7.9.2007. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has argued that the Courts below had erred in holding that the suit filed by the plaintiff was barred by principle of resjudicata. The earlier suit filed by the plaintiff for partition was got dismissed as withdrawn and hence, the present suit filed by the plaintiff was maintainable. The suit could not have been dismissed merely for non joinder of necessary parties. Learned counsel for the respondents, on the other hand, has submitted that the plaintiff had failed to implead all the co- sharers. The substantial questions of law that arise in this case are “Whether the suit filed by the plaintiff was hit by the principle of resjudicata and whether the suit of the plaintiff was liable to fail as all the necessary parties had not been impleaded?” The plaintiff had filed a suit for partition. Earlier also the R.S.A.No. 1768 of 2008(O&M) 4 plaintiff had filed a suit for partition but the same was got dismissed as withdrawn on 24.12.1997. The view taken by the Courts below that the subsequent suit for partition would operate as resjudicata is erroneous. The subsequent suit for partition filed by the plaintiff would not hit by the principle of resjudicata. The earlier suit filed by the plaintiff for partition had been got dismissed as withdrawn as apparently at that time the plaintiff was no longer interested in getting the suit land partitioned. However, at a later stage, the plaintiff could always seek partition of the suit land which was jointly owned by the co-sharers. The plaintiff was, however, required to implead all the necessary parties while filing the present suit. Despite there being a specific issue with regard to the fact that whether the suit was bad for non joinder of necessary parties, the plaintiff failed to make an effort to implead all the necessary parties. In these circumstances, the suit of the plaintiff for partition was liable to be dismissed as he had failed to implead all the necessary parties. Thus, although the suit filed by the plaintiff was not hit by the principle of resjudicata but was liable to fail as all the necessary parties had not been impleaded by the plaintiff while filing the suit. The substantial questions of law that arise in this appeal stand answered accordingly. Hence, this appeal is dismissed. However, the plaintiff would be at liberty to file a fresh suit seeking partition by impleading all the necessary parties. (SABINA) JUDGE March 22, 2011 anita