IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2284 of 2009 Date of Decision : July 06, 2009 Smt. Lajwanti .....Appellant Versus Smt. Satya Devi and another .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. S.S. Godara, Advocate T.P.S. MANN, J. Suit for possession by way of partition in respect of Gair Mumkin Abadi land measuring 2 kanals 2 marlas situated in village Kamana, filed by the respondents was decreed by Additional Civil Judge (Senior Division), Ratia on January 24, 2007, which was upheld in appeal by Additional District Judge, Fatehabad on 14.3.2009. Aggrieved of the same, the defendant has filed the present second appeal under Section 100 of the Code of Civil Procedure. According to the plaintiffs, they were owners as co-sharers to the extent of 2/3rds share in the suit land and claimed partition by virtue of judgment and decree dated 5.5.1993. Though the said decree was challenged by the defendant by filing an appeal yet it was dismissed on 23.4.1996. Even the second appeal, i.e. R.S.A. No. 3251 of 2000 R.S.A. No. 2284 of 2009 -2- was also dismissed by the High Court on 10.10.2002. Thereafter, the plaintiffs filed Civil Suit No. 34-C of 1998, which was decreed on 23.8.2001 but was dismissed in appeal. It was held therein that the plaintiffs could take possession of 2/3rds share of the land measuring 2 kanals 2 marlas by getting it partitioned. The decision arrived at by the appellate Court was challenged by the plaintiffs by filing second appeal and the High Court held them as owners in possession of 2/3rds share of the land measuring 2 kanals 2 marlas and it was also ordered that a partition suit be filed within one month. The defendant was owner in possession of remaining 1/3rd share. The plaintiffs did not want to continue with the land as joint and, therefore, sought its partition by metes and bounds. The case of the defendant was that the plaintiffs were not co-sharers in the suit land as they did not annex any revenue record with their plaint to establish that they were co-sharers. Devi Dayal, father of the parties, was owner in possession of 2 kanals 2 marlas of land alongwith other land and said Devi Dayal gave the aforementioned land to Durga Mandir. The inhabitants of village Kamana and nearby villages used to come to worship in this temple and offer their prayers. The temple was centre of faith and respect for the inhabitants of the area. Special offers were made during Navratras and Shivratri and many Sants and Mahatamas come to the temple. No partition could, therefore, take place of this land nor its possession delivered to the plaintiffs. The R.S.A. No. 2284 of 2009 -3- defendant was not using the land for her personal use and the plaintiffs wanted to get the land partitioned due to their malafides and greed. Learned trial Court held that the plaintiffs had been able to prove that they were owners to the extent of 2/3rds share in the suit property and, therefore, entitled to take possession of their share by way of partition. Accordingly, the suit filed by the plaintiffs was decreed and a preliminary decree for partition was passed in favour of the plaintiffs and against the defendant. As mentioned above, judgment and decree passed by the learned trial Court was upheld in appeal filed by the defendant-appellant. Learned counsel for the appellant has submitted that the suit filed by the plaintiffs/respondents was not maintainable as they were not co-owners of the suit land to the extent of 2/3rds share of the suit land and, therefore, judgments and decree passed by the learned Courts below were perverse, illegal and, therefore, liable to be set aside. Vide judgment dated 5.5.1993 rendered in civil suit filed by Smt. Satya Devi-plaintiff against Smt. Lajwanti, it was held that the judgment and decree dated 17.9.1988 passed in Civil Suit No. 794 of 1988 titled as “Durga Mandir Versus Devi Dayal” in respect of the agricultural land and Gair Mumkin plot, total measuring 2 kanals 2 marlas, was wrong, against law and facts, illegal and null and void. The judgment and decree dated 17.9.1988 was, accordingly, set aside and the R.S.A. No. 2284 of 2009 -4- plaintiffs/respondents were held to be owners to the extent of 2/3rds share and entitled to get the possession of the land. The judgment and decree dated 5.5.1993 was upheld in appeal by the first appellate Court on 23.4.1996 and the plaintiffs were held entitled to obtain possession of 2/3rds share of the land in due course of law. Second appeal filed by the defendant was dismissed by the High Court on 10.10.2002. This fact was not denied by the defendant during her cross-examination before the trial Court as she only feigned her ignorance about the decision arrived at by the High Court. No evidence has been led by the defendant that the order dated 23.4.1996 passed in first appeal was ever set aside or varied by any competent Court. Even subsequent thereto, civil suit filed by the plaintiffs qua the suit property was decreed on 23.8.2001 and they were held as owners of the suit property to the extent of 2/3rds share and entitled to have their names entered in the revenue records. The present defendant was held to be owner to the extent of only 1/3rd share. The subsequent decree was set aside in appeal. However, it was held that the matter in controversy already stood decided by learned Additional District Judge, Hisar vide judgment and decree dated 23.4.1996 and, therefore, the civil Court should not have re-opened the matter. It was also held that the plaintiffs were entitled to get physical possession to the extent of 2/3rds share out of the suit property by applying for partition or by getting the judgment and decree dated 23.4.1996 executed. R.S.A. No. 2284 of 2009 -5- The stand of the defendant-appellant that a temple was in existence over the suit land for the last many years and people had been offering their prayers in the said temple, cannot be accepted as the factum of ownership of Durga Mandir upon the land in dispute has already been decided by the civil Court vide judgment and decree dated 5.5.1993 in Civil Suit No. 411 of 1990 by holding that the consent decree vide which the ownership of the land stands transferred in favour of Durga Mandir, was wrong, illegal and null and void and, therefore, not binding upon the rights of the plaintiffs. In view of the above, it stands established that the plaintiffs/respondents are owners to the extent of 2/3rds share in the suit property and the possession thereof can be obtained by them by way of partition. The findings arrived at by the learned Courts below do not suffer from any illegality or infirmity. The substantial questions of law, as formulated by learned counsel for the appellant, do not arise for consideration in the present second appeal. Accordingly, the appeal is dismissed in limine. ( T.P.S. MANN ) July 06, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO