RSA No.4731 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4731 of 2009 (O&M) Date of Decision: 4.03.2010 Jeet Ram ..Appellant Vs. Ved Prakash & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.M.K.Verma, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) CM No.2777-C of 2010 This application under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure (for short the Code), has been moved for the amendment of the plaint. Suit for partition filed by the appellant/plaintiff stands dismissed, by the learned courts below by recording a concurrent finding of fact, that the suit for partition was not competent as the property stood partitioned in the year 1958. The appellant by way of this application seeks to amend the RSA No.4731 of 2009 2 plaint by pleading that suit for partition was for the area measuring 4000 square yards and was situated in the abadi deh of village Bisoha, whereas it was inadvertently shown as 1666 square yards and prays that he may be allowed to amend the plaint, to correct the typographical error. In the application, it has further been averred that request was also made before the learned lower appellate court, which was rejected. Instead of challenging the order of learned lower appellate court, as to whether the court was right in rejecting the application, this application has been moved which on the face of it is not maintainable. Even otherwise, amendment sought is neither necessary nor relevant, to the question in issue as the suit of the plaintiff/appellant was dismissed for want of maintainability of the suit for partition, in view of proved partition. The application being without merit is dismissed. CM No.14179-C of 2009 This application under section 151 of the Code has been moved for condoning the delay of 353 days in refiling the appeal. For the reasons stated in the application, civil misc. is allowed, and the delay of 353 days is condoned. RSA No.4731 of 2009 The appellant has filed this regular second appeal, against the judgment and decree dated 14.3.2008, passed by the learned courts below, vide which suit filed by the plaintiff/appellant for partition of the land situated in the abadi deh of village Bisoha was dismissed. Plaintiff/appellant sought partition claiming that he had 1/4th RSA No.4731 of 2009 3 share in the property, whereas ¾ share belonged to the defendant/respondents. Suit was contested on the plea that the property stood partitioned between the parties in the year 1958 i.e. prior to consolidation and after the consolidation the plaintiff and defendants were given separate plots, on which construction has been raised. The parties were said to be living separately for the last 20-22 years. Learned lower appellate court affirmed the findings of the learned trial court, in dismissing the suit by recording as under:- “10. The learned counsel for the appellant has relied upon the case titled Pitambar Kar & Ors. Vs. Sri Trilochan Kar & Ors., Hon'ble Orissa High Court, 2003 (3) Latest Judicial Report 148, wherein it was laid down that when the parties are living separately according to their own convenience and were separate in mess, then it is not a proof of partition by metes and bounds. He has further relied upon the case titled Roop Chand Vs. Inderadevi & Ors. ,Hon'ble Madhya Pradesh High Court, 1997 (2) Civil Court Cases 562, wherein it was laid down that mere separate living in the same house by a co-sharers is no proof of family settlement. The learned counsel for the respondents argued that the referred citations are not applicable in the circumstances of the present case because the appellant is require to prove the case on his own legs and he cannot derived out of the weakness of the case of the respondents. The RSA No.4731 of 2009 4 appellant has failed to show that he is the co-sharer in the land which is in possession or the respondents. He vehemently argued that the agricultural land was partitioned among the parties in the year 1958 and during consolidation, separate residential plots were allotted to the parties. He further contended that the plot No.298 adjoining the western side of the property shown by blue colour Mark J1 to J4 was allotted to the appellant by the consolidation authorities. The learned counsel for the respondent has relied upon the case titled Chandgi Ram Vs. Kartar Singh, Hon'ble Punjab and Haryana High Court, 2001 (3) RCR (Civil) 589, wherein it was laid down that where the agricultural land already stands partitioned, then the presumption of partition of residential property is also attached to it. The suit for partition is liable to fail. He has further relief upon the case titled Babu Ram Vs. Kundan & Org., Hon'ble Punjab and Haryana High Court, 1997 ()1) CCC 437, wherein it was laid down that when the members of the joint family had started residing separately from each other and they started cultivating the land independently without interference from others indifferent villages, then there is a presumption of partition among the family members regarding other immovable property. The appellant has already transferred the agricultural land of his share in favour of his son vide judgment Ex.D.11 and decree Ex.D.12. Since the property RSA No.4731 of 2009 5 in dispute is not jointly owned by the appellant, therefore, the appellant cannot seek the partition by way of filing the present suit. The learned lower Court has rightly discussed the evidence and the facts of the case. The findings given under all the issue are correct and the same stands admitted.” Learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether both the courts below are legally justified in raising the presumption of partition in the facts and circumstances of the present case especially when it is admitted case that there is no documentary proof of partition? 2. Whether the judgments and decrees passed by both the courts below are vitiated in the facts and circumstances of the present case? 3. Whether both the courts blow have decided the issue No.1 in the right perspective? 4. Whether grave and manifest injustice has been caused to the appellant/plaintiff in the facts and circumstances of the case? 5. Whether the impugned judgments and decrees passed on the basis of presumption and assumption sustainable in RSA No.4731 of 2009 6 the eyes of law? In support of the first substantial question of law, learned counsel for the appellant contended that in the absence of any document of partition, learned courts below wrongly held that the suit for partition was not competent. The judgment and decree passed by the learned courts below cannot be sustained, being perverse. This contention of the learned counsel for the appellant, on the face of it, is misconceived, as it was admitted by the learned counsel for the appellant that agricultural land stood partitioned and the parties were in possession of their respective shares. Though an attempt was made to contend, that no partition had taken place, but the learned counsel for the appellant was not able to show as to why the suit for partial partition was filed, without including the agricultural land. On second question of law learned counsel for the appellant merely contended that the judgment and decree passed by the learned courts below stood vitiated in the circumstances of the present case. This cannot be said to be a substantial question of law to be raised in regular second appeal and the contention is totally vague and supported by neither pleading nor evidence, so nothing was shown as to how the decree stood vitiated. Substantial questions of law No.3, 4 and 5 also cannot be said to be substantial questions of law, nor learned counsel for the appellant was able to show how manifest injustice, was caused to the appellant. The RSA No.4731 of 2009 7 learned courts below on appreciation of evidence recorded concurrent finding of fact that the property stood partitioned in the year 1958, and the parties were in separate possession of their share since then. For the reasons stated, I find no merit in this appeal which is ordered to be dismissed in limine, but with no order as to costs. 4.03.2010 (Vinod K.Sharma) rp Judge