R.S.A.No. 3952 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 14.2.2011 R.S.A.No. 3305 of 2007 (O&M) Sudarshan Lal ......Appellant Versus Som Nath and others .......Respondents R.S.A.No. 3952 of 2007 (O&M) Surinder Mohan ......Appellant Versus Som Nath and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ashok Singla, Advocate, for the appellants. Mr.C.M.Munjal, Advocate for respondent No.1. **** SABINA, J. Vide this judgment, RSA Nos.3305 and 3952 of 2007 will R.S.A.No. 3952 of 2007 (O&M) 2 be disposed of as these have arisen out of the same suit. Plaintiff Som Nath had filed a suit for separate possession to the extent of 2/5th share of the land measuring 9 kanals 9 marlas bearing khasra No.179//2/1(4-0), 9/2(4-0) and 12/1/1 (1-9). The case of the plaintiff, in brief, was that Hans Raj was owner of the land measuring 9 kanals 9 marlas. After the death of Hans Raj, the suit land was inherited by the defendants. Defendants No.8 and 9 had 2/5th share in the suit land and have sold their share to the plaintiff vide sale deed dated 2.12.1997. There was a brick kiln in the suit land along with other land belonging to Hans Raj. Hence, suit for separate possession was filed by the plaintiff Defendant, No.1, in his written statement, admitted the fact that Hans Raj was owner of the suit land but it was denied that he was in possession of the suit land. The inheritance of the suit land by the defendants after the death of Hans Raj was admitted. It was admitted that there was a brick kiln in the suit land. It was averred that the plaintiff was not entitled to seek partition of the suit land as he had not become co-sharer in the suit land. The suit was bad on account of partial partition. Defendant No.2, in her written statement, took up the similar pleas as those taken by defendant No.1. Defendant No.10, in his written statement, denied that Hans Raj was owner of the suit land. It was averred that there was a R.S.A.No. 3952 of 2007 (O&M) 3 brick kiln in the land measuring 18 kanals 17 marlas bearing khasra No.179//2/2(4-0), 9/1 (4-0), 12/1/2 (1-0) and khasra No.179//2/1(4-0), 9/2(4-0), 12/1/1(1-9). Answering defendant had constructed the entire building and had installed the brick kiln and was carrying on the business under the name and style of M/s Surinder Mohan and Company. Hans Raj had died in the year 1989 but had never remained in possession of the suit land nor was the owner of the same. No sale deed had been executed by defendants No.8 and 9 in favour of the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff has any share in the suit land and if so to what extent? OPP. 2. Whether the suit is bad on account of partial partition OPD 3. Whether defendants No.8 and 9 had any share in the suit land and consequently sale dated 2.12.1997 executed by them in favour of the plaintiff is valid? OPP 4. Relief.” Thereafter, vide order dated 10.8.2005, the following additional issues were framed:- “1. Whether the defendant has become owner by way of adverse possession ? OPD 2. Whether the suit not properly valued for the purpose of court fee and jurisdiction? OPD R.S.A.No. 3952 of 2007 (O&M) 4 3. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 8.9.2005. Aggrieved by the same, plaintiff preferred an appeal and defendant No.10 filed his cross- objections. Vide judgment and decree dated 21.11.2006 passed by Additional District Judge, Faridkot, the appeal filed by the plaintiff was allowed and a preliminary decree was passed for separate possession by partition in favour of the plaintiff to the extent of 2/5th share in the suit land. The cross-objections filed by defendant No.10 were dismissed. Hence, the present appeals by defendant No.1 and defendant No.10. After hearing learned counsel for the parties, I am of the opinion that the present appeals are devoid of any merit and deserve dismissal. In the present case, as per copy of the jamabandi Ex.P-3 for the year 1994-95 Balbir Singh was initially owner of the suit land and he had sold the same to Hans Raj vide sale deed dated 2.12.1997, Ex.P-1. Mutaion No.3540 was sanctioned in favour of the sons of Hans Raj after his death. A presumption of truth is attached to the entries in the jamabandi unless rebutted. There is no rebuttal to the said entries in the jamabandi. Janak Raj and Mahesh Chander defendant Nos. 8 and 9 respectively sold their share out of the suit land to the plaintiff for a consideration of ` 95,000/-. The said sale deed was duly proved by the plaintiff by examining the scribe. R.S.A.No. 3952 of 2007 (O&M) 5 Moreover, defendants No.8 and 9 had not appeared in the witness box to deny the execution of the said sale deed. The next question that requires consideration is as to whether the suit filed by the plaintiff for partition was maintainable. The plaintiff has purchased share of defendants No.8 and 9 out of the suit land measuring 9 kanals 9 marlas. The plaintiff is not a part of the joint Hindu family and hence, the suit of the plaintiff could not be dismissed on the ground that the plaintiff could not seek partial partition of the land owned by Hans Raj. Plaintiff has no concern with the other property belonging to Hans Raj. Plaintiff is only concerned with his share which he had purchased from defendants No.8 and 9 out of the suit land measuring 9 kanals 9 marlas. In these circumstances, the first Appellate Court had rightly decreed the suit of the plaintiff. No substantial question of law arises in these regular second appeals, which would warrant interference by this Court. Accordingly, the same are dismissed. (SABINA) JUDGE February 14, 2011 anita