RSA No.748 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.748 of 2010 (O & M) Date of Decision: 16.05.2011 Dharambir ……Appellant Versus Parkashwati and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Gaurav Kathuria, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.2096-C of 2010 Allowed as prayed for. CM No.2097-C of 2010 and Main Appeal Plaintiff-Dharambir, having failed in both the Courts below, has filed the instant second appeal. Plaintiff filed suit for separate possession by partition of suit property situated in Abadi Deh of village Hathin. Plaintiff’s case is that his father Lekhram was owner of the suit property. Lekhram had four sons i.e. plaintiff-Dharambir, Udaibhan predecessor of defendants, Chatarbhuj and Bhagwan Singh. According to plaintiff, all the four brothers had 1/4th share each in the suit property, but plaintiff purchased 1/4th share each of Chatarbhuj and Bhagwan RSA No.748 of 2010 (O & M) - 2 - Singh and thus plaintiff is owner of the suit property to the extent of 3/4th share whereas defendants, who are widow and three sons of Udaibhan, are owners of 1/4th share of Udaibhan in the suit property. Defendants broadly denied the plaint allegations. It was denied that plaintiff is co-owner to the extent of 3/4th share in the suit property. It is denied that plaintiff is in possession of any part of the suit property. Defendants claimed to be exclusive owners in possession of the suit property. Learned Additional Civil Judge (Senior Division), Hathin vide judgment and decree dated 04.12.2008 dismissed the plaintiff’s suit. First appeal preferred by plaintiff has also been dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 23.09.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Practically there is no evidence to depict that suit property is joint property of the parties. Oral statement of plaintiff and his witnesses stands rebutted by oral statements of defendant No.3 and other witnesses of the defendants. In addition to the aforesaid, the plaintiff while appearing in the witness box himself admitted that they had mutually partitioned RSA No.748 of 2010 (O & M) - 3 - their property in the year 1984 and since then they have been living separately. Similar admissions have been made by PW-2 Bhagwan Singh and PW-3 Chatarbhuj (both brothers of the plaintiff), the only other witnesses examined by the plaintiff. It is thus apparent that the suit property is not joint property of the parties because the parties as well as Bhagwan Singh and Chatarbhuj had partitioned their properties in the year 1984 i.e. two decades before the filing of the instant suit. No document has been produced relating to the suit property to depict that it is joint property of the parties. It is also not proved that the suit property was ever owned by Lekh Ram predecessor of the parties. Plaintiff has also not produced any sale deed regarding alleged purchase of 1/4th share each in the suit property from Chatarbhuj and Bhagwan Singh. There could be no oral sale of the aforesaid immoveable property by Chatarbhuj and Bhagwan Singh in favour of the plaintiff. Consequently, Chatarbhuj and Bhagwan Singh were also necessary party to the partition suit, but they were not impleaded. It has also come in evidence that Chatarbhuj and Bhagwan Singh are living in Hathin in other properties. Partition thereof has not been sought. Consequently, the plaintiff could not file suit for partition of the suit property only. If in mutual partition RSA No.748 of 2010 (O & M) - 4 - effected in the year 1984, plaintiff’s brothers got other properties and the defendants got the suit property in which they are living, the plaintiff cannot seek partition of suit property only without seeking partition of the other properties which fell to share of plaintiff’s other brothers. It may also be added that plaintiff is admittedly residing in Bombay (now Mumbai) for the last 28 years. It also depicts that he is not in possession of any part of the suit property. Consequently, the plaintiff cannot be said to be having any share in the suit property because according to admissions of plaintiff and his witnesses, the properties were partitioned in the year 1984 and since then the parties have been living separately. Along with appeal, appellant moved CM No.2097-C of 2010 for additional evidence to place on record copy of House Tax Assessment Register for the year 2007-08 as additional evidence. However, the said document has not been linked with the suit property. Property number mentioned in the Assessment Register has not been mentioned in the plaint. It is not alleged that the suit property bears any such number. In addition to it, in the Assessment register, the property to which this document relates is depicted to be exclusively owned by the plaintiff himself. It would mean that either the document does not relate to suit property or the document does not depict correct position. Plaintiff’s version is that suit property is RSA No.748 of 2010 (O & M) - 5 - joint property of the parties, but the document sought to be produced in additional evidence depicts the property mentioned therein to be exclusive property of the plaintiff. In either event, the document cannot be said to be pertaining to the suit property. It is thus manifest that application for additional evidence is not only meritless, but is completely frivolous and the same is accordingly dismissed. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below to non-suit the plaintiff is fully justified by the evidence on record including admissions of plaintiff and his both witnesses. The said finding, therefore, does not warrant interference in second appeal as it is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 16.05.2011. A.kaundal