Regular Second Appeal No. 1672 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1672 of 2011(O&M) Date of decision : April 06, 2011 Mohammad Ashraf ....Appellant versus Sadiqan ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Nandan Jindal, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 4626.C of 2011 Allowed as prayed for. RSA No. 1672 of 2011 Defendant No. 1 Mohammad Ashraf, who became the sole defendant because defendants no. 2 and 3 were given up, is in second appeal after remaining successful in the trial court but having been unsuccessful in the lower appellate court. Respondent – plaintiff Sadiqan filed suit against defendant – appellant for separate possession of 2/3 share by partition of the disputed shop. The plaintiff alleged that Shamim Bano was owner in possession of Regular Second Appeal No. 1672 of 2011(O&M) -2- the disputed shop to the extent of 2/3rd share. The plaintiff has purchased the same from Shamim Bano vide sale deed dated 30.5.2002 and thus, the plaintiff is joint owner in possession of 2/3 share of the disputed shop. Defendants have 1/3rd share in the disputed shop. The plaintiff sought partition of the disputed shop. Defendants no. 2 and 3 were deleted from the array of defendants. Defendant no. 1 contested the suit and pleaded that he was tenant in the disputed shop under defendants no. 2 and 3 to the extent of 1/3 share and under Shamim Bano to the extent of 2/3 share. However, Shamim Bano was not owner of the disputed shop but was only authorised to receive rent of 2/3 share of the disputed shop from defendant no. 1. It was also pleaded that defendants no. 2 and 3 have sold their 1/3 share in the disputed shop to defendant no. 1 who has become owner of the said share. Various other pleas were also raised. Learned Civil Judge (Junior Division), Malerkotla vide judgment and decree dated 20.10.2009 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Sangrur vide judgment and decree dated 4.1.2011 and thereby suit filed by the plaintiff has been decreed and preliminary decree of partition has been passed. Feeling aggrieved, defendant no. 1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that Regular Second Appeal No. 1672 of 2011(O&M) -3- plaintiff's vendor Shamim Bano was not owner of 2/3 share of the disputed shop and she was only authorised to receive rent thereof. The contention cannot be accepted. The appellant has not even pleaded as to in which capacity Shamim Bano was authorised to receive rent of 2/3 share of the disputed shop if she was not owner thereof. On the contrary, rent note Annexure P1 produced by appellant himself in his evidence reveals that vide this rent note he had taken the disputed shop on rent from defendants no. 2 and 3 and Shamim Bano. In the said rent note it was specifically admitted by defendant no. 1 – appellant that aforesaid landlords were owners of the disputed shop. Thus, it is manifest from this rent note itself that Shamim Bano was owner co-sharer in the disputed shop. Faced with the aforesaid situation, learned counsel for the appellant contended that plaintiff has to stand on her own legs. The contention is misconceived and does not help the appellant in any manner. Rent note has been produced by the appellant himself and the same has to be taken into consideration while adjudicating the lis. The rent note contains admission of appellant himself regarding ownership of plaintiff's vendor Shamim Bano. The said admission has not been withdrawn in any manner nor shown to be wrong. On the other hand, the very fact that Shamim Bano was entitled to receive rent and was actually receiving rent of 2/3 share of the disputed shop would also depict that she was owner of the disputed shop because there is neither any pleading nor any evidence to the effect that Shamim Bano was receiving the rent in any other capacity except ownership. Regular Second Appeal No. 1672 of 2011(O&M) -4- Learned counsel for the appellant next contended that at best Shamim Bano was owner of 1/3 share and not 2/3 share of the disputed shop because vide rent note Annexure P/1, three landlords had rented out the disputed shop to the appellant. The contention is again misconceived and devoid of merit because in the written statement, defendant no. 1 – appellant himself admitted that Shamim Bano was receiving rent of 2/3 share of the disputed shop depicting that Shamim Bano had 2/3 share and not 1/3 share in the disputed shop. In addition to it, defendant no. 1 himself purchased 1/3 share in the disputed shop from defendants no. 2 and 3, the other two landlords. It would again depict that defendants no. 2 and 3 had only 1/3 share and remaining 2/3 share belonged to Shamim Bano. The plaintiff having purchased from Shamim Bano is, therefore, owner of 2/3 share in the disputed shop. Learned counsel for the appellant contended that the appellant has spent huge amount on reconstruction of the shop because the rent note itself recites that the shop was old and dilapidated and the tenant – appellant was authorised to construct one or more floors and now the disputed shop is admittedly two storied shop depicting that defendant no. 1 – appellant has raised the construction. This plea may be taken into consideration in proceedings of preparation of final decree of partition. For the reasons aforesaid, I find no merit in the instant second appeal. Finding of the lower appellate court that plaintiff is owner of the disputed shop to the extent of 2/3 share is fully justified by the evidence on record and almost stands admitted by defendant no. 1 – appellant himself. Regular Second Appeal No. 1672 of 2011(O&M) -5- Plaintiff's suit has, therefore, been rightly decreed for partition. Finding of the lower appellate court does not call for interference in exercise of second appellate jurisdiction because the said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreication of evidence. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed subject to observation made in the preceding paragraph. ( L.N. Mittal ) April 06, 2011 Judge 'dalbir'