RSA No.811 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 811 of 2008 (O&M) Date of Decision: August 13, 2009 Shamsher Singh ...........Appellant Versus Raghubir Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Arun Takhi,Advocate for the appellant. ** Sabina, J. Plaintiff filed a suit for possession of 1/3rd share by way of partition of property as fully detailed in the head note of the plaint. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Hoshiarpur vide judgment and decree dated 4.8.2004. Aggrieved by the same, plaintiff preferred an appeal and vide judgment and decree dated 9.9.2005, learned District Judge, Hoshiarpur dismissed the same. Hence, the present appeal. The case of the parties, as noticed by the learned District Judge in paras 2 and 3 of its judgment reads as under:- 2.Briefly stated, the case of the plaintiff is that the suit land measuring 4 marlas bears khasra No.1597 and that Harnam Singh son of Hamir Singh, Nand Singh son of Hamir Singh and Jai RSA No.811 of 2008 (O&M) 2 Kaur widow of Ram Singh son of Hamir Singh were the owners of the said khasra number bounded by khasra No. 1596 and 1998 which were owned by the ancestors of Sohan Singh namely Dewa Singh who died leaving behind more than six heirs namely Harbans Singh, Karam Singh, Jaswant Singh, Dharam Singh, Varinder Singh, Jasdev Singh sons of Kulwant Singh and they are owners after the death of aforesaid Deva Singh whereas Sh.Mahtab Singh son of Musadda Singh was owner of khasra No. 1597. Nand Singh and Jai Kaur have died issueless and after their death the aforesaid property bearing khasra No. 1597 devolved upon Harnam Singh grand father of the plaintiff and defendant No. 3 and 4 and deceased Bhagwan Singh. Bhagwan Singh had also died issueless and wifeless because his wife has also died and his share devolved upon the plaintiff and defendants No.3 and 4,therefore, the plaintiff has 1/3rd share out of the land shown red in the site plan bearing khasra No. 1597, as per bandobast for the year 1884. It is further averred that defendant No.1 has purchased the property measuring 10 marlas bounded as East:Property of Naranjan Singh, West Rasta, South:Property of Mohan Lal ( in fact Sh.Mohan Lal is towards northern side) situated in village Jangliana, Tehsil Garhshankar, Distt. Hoshiarpur and plaintiff filed civil suit against defendant No.1 which was dismissed vide judgment and decree dated 30.3.94 and the plaintiff filed against that judgment and decree before the learned Addl. District Judge, Hoshiarpur in which Sh. Sandeep Tewari, Advocate for the respondent made statement that if the plaintiff-appellant proves RSA No.811 of 2008 (O&M) 3 himself to be co-owner he shall file suit for partition. Sh. Sandeep Tewari Advocate made the above statement in response to the statement of Sh.J.P.Walia, Advocate that there is technical defect in the frame of the suit and that the plaintiff be allowed to withdraw the suit and said counsel has no objection to withdraw the suit and the said counsel has no objection except costs and the costs were imposed as Rs.500/- which were paid then and there. So far co-ownership of the aforesaid khasra No.1597 is concerned, plaintiff relief upon Bandobast of 1884 in which the ownership of Harnam Singh, Nand Singh and Jai Kaur was shown owners of the plot in dispute and being legal heirs of the aforesaid owners by virtue of inheritance the plaintiff has 1/3rd share, It is further averred that in view of the permission to file fresh suit on the same cause of action the effect of the same is that all the findings, if any, are set aside against the plaintiff and he has shown himself as owner to the extent of 1/3rd share and is entitled to the partition of the plot in dispute. Since the defendant No.1 has admitted that the plaintiff is co-sharer of khasra No. 1597,therefore, defendant No.1 or defendant No.2 cannot claim adverse possession. The plaintiff is proved to be owner to the extent of 1/3rd share of khasra No. 1597,therefore, the plaintiff is entitled to get the same partitioned and got his share separated. When the defendants No. 1 and 2 refused to admit the claim of the plaintiff, hence this suit for possession of 1/3rd share by way of partition of the property measuring 4 marlas fully described and detailed in the head note of the plaint. RSA No.811 of 2008 (O&M) 4 3. On notice of the suit, defendant No.1 only appeared and filed written statement wherein he contested the suit. He in the written statement asserted that the suit property was owned by defendant No.2 and the plaintiff has no concern with the suit property. Even earlier Bhagwan Singh, brother of the plaintiff filed a suit claiming the suit property to be his ownership in terms of some family settlement and the claim of Bhagwan Singh was lost at appellate stage. Defendant No.1 purchased the suit property from defendant No.2 vide sale -deed dated 15.3.1982. It is further pleaded that in the earlier suit decided on 25.9.89 in between the parties, a local commissioner was got appointed, but he could not find the property number as alleged by the plaintiff and the suit was dismissed. The plaintiff and defendant No.3 and 4 have no concern with the suit property. It is denied that the plaintiff is having 1/3rd share in the suit property. Defendant No.1 further submitted that the possession on the suit property by him is from 15.3.82 and even he has become owner by way of adverse possession. He denied rest of the allegations and took certain preliminary objections. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff has 1/3rd share in the suit property? OPP 2. Whether the suit is under valued for the purpose of court-fee and jurisdiction?OPD 3. Whether the suit property has not been correctly described in RSA No.811 of 2008 (O&M) 5 the plaint. If so, what is correct description there of?OPD 4.Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 6. Whether the suit is barred under order 23 Rule 1 CPC and sections 11,12 and Order 2 Rule 2 CPC as also under the principle of resjudicata?OPD 7. Whether the plaintiff has no locus-standi to file present suit?OPD 8. Whether the plaintiff is entitled to possession of 1/3rd share by way of partition of suit property as prayed for?OPP 9. Relief” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff had filed a suit for possession by way of partition. Plaintiff Shamsher Singh, while appearing in the witness box as PW2, admitted that Raghbir Singh was in possession of the property in dispute. Plaintiff further admitted that the suit land was sold by Sohan Singh to defendant No.1 vide registered sale deed dated 15.3.1982. He was not in possession of the suit property at the time of filing of the suit. He did not know about the existing position regarding construction at the spot as he had never gone there. The disputed site is in the abadi area. After appreciating the evidence on record, the Courts below found that the plaintiff has failed to prove his title regarding the suit property in dispute or that it had been owned by his ancestors. In these circumstances, it was held RSA No.811 of 2008 (O&M) 6 that the plaintiff could not be treated as a co-sharer/co-owner in the property in dispute. The suit filed by the plaintiff bearing number.285 of 3.10.1996 challenging the said sale deed was dismissed as withdrawn with permission to file afresh on the same cause of action. No such suit was filed by the plaintiff. The sale deed in question pertains to the year 1982 whereas the present suit was filed on 15.6.1998. In these circumstances, both the Courts below held that it is evident that the suit has been filed merely to harass defendant No.1 . No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 13, 2009 arya