R. S. A. No. 1739 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1739 of 2011 (O&M) Date of Decision : April 19, 2011 Bakhtawar Singh .... Appellant Vs. Sarwan Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Premjit Singh Hundal, Senior Advocate with Mr. Jagjot Singh Lalli, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 4849-C of 2011 : Allowed as prayed for. C. M. No. 4850-C of 2011 : Application is allowed and Annexures A-1 to A-5 are taken on record, subject to all just exceptions. Main Appeal : Defendant no.1 Bakhtawar Singh having failed in both the courts below has filed the instant second appeal. R. S. A. No. 1739 of 2011 (O&M) 2 Respondent no.1-plaintiff Sarwan Singh filed suit against defendant no.1-appellant and respondents no.2 to 5 as defendants no.2 to 5 for separate possession of his (plaintiff's) one-third share by partition of suit land measuring 01 kanal 13 marlas comprised of khasra no.86. Gurbax Singh – father of defendants no.1 and 2 and Piara Singh – father of defendants no.3 to 5 are brothers of Sarwan Singh – plaintiff. Plaintiff's case is that suit land is joint land of the parties, in which plaintiff has one- third share. Defendants no.3 to 5 admitted the claim of the plaintiff, whereas defendant no.2 was proceeded ex-parte. Only defendant no.1 contested the suit. Defendant no.1 inter alia pleaded that in addition to the suit property, there were also many other joint properties of the parties. Parents of the parties effected oral partition of the said properties. In the said oral family settlement, the suit land fell to the share of defendant no.1, whereas other properties fell to the share of plaintiff and father of defendants no.3 to 5 and since then, the parties are in exclusive possession of the properties, which fell to their shares. Some other pleas were also raised. Learned Additional Civil Judge (Senior Division), Nawanshahar (S.B.S.Nagar), vide judgment and decree dated 25.09.2009, decreed the plaintiff's suit and passed preliminary decree for partition. First appeal preferred by defendant no.1 has been dismissed by learned R. S. A. No. 1739 of 2011 (O&M) 3 Additional District Judge, Shaheed Bhagat Singh Nagar, vide judgment and decree dated 12.01.2011. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Revenue record reveals that parties are joint owners of the suit land and plaintiff has one-third share therein. Consequently, onus was on defendant no.1-appellant to prove that there was oral family settlement/partition in which the suit property fell to his exclusive share. However, defendant no.1 has miserably failed to prove the said version. Defendant no.1 himself did not enter into the witness-box and therefore, very strond adverse presumption arises against defendant no.1-appellant. Defendant no.1 examined his Attorney Tarsem Singh (DW-2). However, testimony of Tarsem Singh (DW-2) would not be sufficient substitute for the testimony of defendant no.1 himself. In order to give veracity to the testimony of Tarsem Singh, he deposed that he was also present at the time of alleged family settlement. This part has been introduced to only give veracity to his testimony regarding the alleged oral family settlement. However, Tarsem Singh was completely shaken in cross-examination. His testimony is sufficient to discard the version of defendant no.1-appellant. Tarsem Singh could not even tell the year, date or month of the alleged partition. Moreover, Tarsem Singh explicitly and categorically admitted R. S. A. No. 1739 of 2011 (O&M) 4 that suit property is joint property of the parties to the suit. He also stated that there are also other joint properties of the parties in the village. These admissions made by star witness of defendant no.1-appellant in cross- examination completely knock out the bottom of the case of the appellant. It would not be out of place to notice here that appellant has placed on record Annexure A-3 – complete statement including cross-examination of the plaintiff and also Annexure A-4 – complete statement of Gurbachan Singh (PW-2) including cross-examination, but while placing on record the testimony of Tarsem Singh (DW-2), only affidavit of his examination-in- chief (Annexure A-5) has been placed on record, whereas his cross- examination, which went against the appellant-defendant no.1, was withheld from this Court and has been shown by the counsel on being demanded by the Court. The said cross-examination completely exposes the hollowness of the testimony of Tarsem Singh (DW-2) as well as version of defendant no.1-appellant. Tarsem Singh even went to the extent of admitting that there was no partition of the suit property and there was no partition or settlement between the parties concerning the suit property and other properties. In view of the aforesaid nature of the testimony of appellant's Attorney, it cannot be said that there was oral partition or family settlement, under which defendant no.1 became exclusive owner of the suit property. The suit land is land of khasra no.86 having revenue record. However, the alleged oral partition was not entered in the revenue record. R. S. A. No. 1739 of 2011 (O&M) 5 The suit land continues to be joint land of the parties in the revenue record. Learned counsel for the appellant relied on judgment of this Court in the case of Mohan Singh vs. Lachhman Singh reported as 1993 (1) P. L. R. 643 to contend that oral family partition can be given effect to even if it has not been entered in revenue record. However, facts of the instant case are entirely different. However, judgment of this Court in the case of Bhagwan Ram vs. Brij Lal reported as 2000 (2) R.C.R. (Civil) 349, also cited by counsel for the appellant, goes against the appellant on this aspect. It was observed in that judgment that implementation of family partition in revenue record is necessary. However, if the co-sharers admit the separation of their shares and possession of their respective shares since long, presumption of family partition is there. In the instant case, however, the plaintiff and defendants no.3 to 5 do not admit the separation of their shares and do not admit the possession of their respective shares as well. Learned counsel for the appellant emphatically referred to the testimony of Gurbachan Singh (PW-2). His cross-examination to some extent supports the version of defendant no.1-appellant. However, statement of plaintiff himself and also statement of Tarsem Singh leave no room for doubt that there was no alleged oral family settlement or partition of the suit land between the parties and the suit land continues to be joint land of the parties. R. S. A. No. 1739 of 2011 (O&M) 6 There is concurrent finding recorded by both the courts below in favour of the plaintiff. The said finding is fully justified by the evidence on record. Defendant no.1-appellant has failed to prove alleged oral family settlement or partition. Consequently, suit of the plaintiff has been rightly decreed by the courts below. Finding recorded by the courts below is not found to be perverse or illegal nor it is based on misreading or misappreciation of evidence. The said finding, therefore, does not call for interference in second appeal. Learned counsel for the appellant emphasized that suit is bad for partial partition. The contention cannot be accepted because the other alleged properties are not proved to be joint properties of the parties. Finding to this effect has also been recorded by the courts below. For the reasons aforesaid, I do not find any merit in the instant second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. April 19, 2011 ( L. N. MITTAL ) monika JUDGE