RSA No.3629 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3629 of 2010 (O & M) Date of Decision: 26.04.2011 Uday Singh ……Appellant Versus Dhan Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. M. S. Tewatia, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.10699-C of 2010 For reasons mentioned in the application which is accompanied by affidavit of the counsel, delay of 83 days in re-filing the appeal is condoned. Main Appeal. Defendant No.1-Uday Singh, who was successful in the trial Court, but has been unsuccessful in the lower appellate Court, has filed the instant second appeal. Dhan Singh-respondent No.1-plaintiff filed suit against defendant No.1-appellant and proforma respondent Nos.2 to 8 herein as defendant Nos.2 to 8. Plaintiff and defendant Nos.1 and 2 are brothers whereas defendant No.3 is son of their deceased brother. Defendant Nos.4 to 8 are sons of defendant No.2. RSA No.3629 of 2010 (O & M) - 2 - The plaintiff sought partition of residential plot in dispute measuring 2 kanals alleging that he has 1/4th share therein. Defendant Nos.1 to 3 contested the suit and pleaded that in mutual partition effected many years ago, the suit property fell to the exclusive share of defendant No.1 and he is exclusive owner in possession thereof. Defendant Nos.4 to 8 admitted the claim of the plaintiff. Learned Civil Judge (Junior Division), Palwal vide judgment and decree dated 10.01.2008 dismissed the plaintiff’s suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Faridabad vide judgment and decree dated 04.09.2009 and thereby partition suit filed by the plaintiff has been decreed holding his share to be 1/4th in the suit property 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 in mutual partition, the suit plot fell to the exclusive share of defendant No.1 and, therefore, the plaintiff has no share in it. It was pointed out that plaintiff admitted in cross-examination that he had sold two acres land out of the agricultural land of his share, depicting that there was mutual partition. RSA No.3629 of 2010 (O & M) - 3 - I have carefully considered the aforesaid contentions, but the same cannot be accepted. In Jamabandis for 1998-99 and 2003- 04 and also in khasra girdawari for 1993-94 and 1998-99, parties have been recorded to be joint owners in possession of the suit property. The said revenue entries depict that parties are still cosharers in the suit property. Presumption attaching to entries in jamabandi has not been rebutted. Oral evidence of defendants stands rebutted by oral evidence of the plaintiff. It may be added that Rati Chand DW-1 admitted that alleged mutual partition had not taken place in his presence. Moreover, the alleged mutual partition took place in the year 1980 and the instant suit was filed in the year 2000, but during this long interregnum of two decades, no entry of alleged mutual partition was got made in the revenue record. Sale of two acres agricultural land by the plaintiff out of his share does not prove the alleged mutual partition in any manner because a cosharer can sell land out of his share even while the land has not been partitioned and continues to be joint and such sale is subject to partition. In addition to the aforesaid, plaintiff had also filed an injunction suit against defendant No.1 to injunct him from raising construction in the suit property and from interfering in joint possession of the plaintiff over the suit property without getting it partitioned. Said suit has been decreed vide judgment and decree dated 10.05.2007 holding the suit property to be joint property of the parties. Lower appellate Court has observed that there is nothing on record to depict that the said judgment and decree passed in the RSA No.3629 of 2010 (O & M) - 4 - injunction suit have been challenged by defendant No.1. Consequently, in view of said judgment and decree also, it has to be held that suit property is joint property of the parties. Even agricultural land has now been partitioned by the revenue Court and defendant No.1 has not challenged the said partition order as submitted by counsel for defendant No.1-appellant, although some other cosharers may have challenged the partition order of the revenue Court. However, it would also depict that no mutual partition as alleged by defendant Nos.1 to 3 had taken place. For the reasons aforesaid, I have no hesitation in affirming the finding of the lower appellate Court that the suit property is joint property of the parties and mutual partition as alleged by defendant Nos.1 to 3 had not taken place. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in second appeal. On the other hand, on the basis of the evidence on record, the said finding is the only reasonable view that can be taken of the material on record. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 26.04.2011. A.kaundal