RSA No. 3253 of 2008 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on February18,2010. Rajveer Singh and others --Appellants vs. Sarbati Devi and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sarjit Singh,Senior Advocate, with Mr.Jagdev Singh,Advocate, for the appellants Mr G.S. Sidhu,Advocate,for respondent No.2. Mr.M.L.Sarin,Senior Advocate, with Mr. Kabir Sarin,Advocate,for respondents Nos.4,5 and 67. Rakesh Kumar Jain, J, This appeal is filed by the successor-in-interest of the plaintiffs whose suit was decreed by the trial Court to the following effect:- i)Suit is decreed for separate possession by way of partition of one half share of Dharam Singh plaintiff in non- agricultural land measuring 27 kanals 13 marlas comprised in Khasra Nos.420, 421,422.423,424,425,426 and 427 (which are part of old khasra No.321). ii)Dharam Singh plaintiff had 1/4th share in old khasra No. 320 RSA No. 3253 of 2008 (O&M) 2 (the present khasra Nos. of which are 479 to 483). Dharam Singh plaintiff sold 111/476 share from khasra No.320 to Data Ram, predecessor of defendant Nos. 74 and 75. He was left with 8/476 share, which he also sold. These Khasra Nos. 479 to 483 were included in the suit as Dharam Singh plaintiff is still recorded a co-sharer in them and to meet out the objection for partial partition. It is made clear that now Dharam Singh plaintiff has no share in Khasra Nos. 479 to 483. However , these Khasra Nos. shall also be partitioned amongst other co-sharers. iii)From Khasra No.427, Dharam Singh plaintiff sold about 2 kanals land to Balwant Singh, father of defendant No.49, who further sold part of this land to defendants Nos. 50 to 52,over which these defendants have constructed a petrol pump. It is shown as marked A in the site plan. Dharam Singh plaintiff also sold 954 sq.feet land out of Khasra No.427 to Surjit Singh, who constructed a house. It is shown as marked B in the site plan. Dharam Singh plaintiff also sold 3 kanals 7 marlas land out of khasra No.427 to Harbans Lal and Janak Raj plaintriffs. It is shown as marked C in the site plan. These plaintiffs are out of possession. These sales effected by Dharam Singh plaintiff from khasra No 427 shall be taken into consideration while computing his ½ share in Khasra Nos. 420 to 427. Harbans Lal and Janak Raj plaintiffs would be entitled to get 3 kanals 7 marlas land or some other land of equivalent value, which may fall to the share of Dharam Singh plaintiff RSA No. 3253 of 2008 (O&M) 3 on such partition. iv)The sales made by Bachan Singh deceased co-sharer from old Khasra No. 321 (present khasra Nos. 420 to 427) over and above his share shall have no effect to the rights of Dharam Singh plaintiff. Similarly, sales by vendees of Bachan Singh, the sales made by Bachan Singh deceased co-sharer from old Khasra No, 321 (present khasra Nos. 420 to 427) over and above his share shall have no effect on the rights of Dharam Singh plaintiff. Similarly, sales by vendees of Bachan Singh deceased, namely, Bansi Ram, Milkhi Ram and Ved Raj over and above their shares shall have no effect on the rights of Dharam Singh plaintiff. Bachan Singh could sell only ½ share of land from Khasra Nos.420 to 427. In order words he could sell 6 kanals 18 marlas land to Bansi Ram; 3 kanals 9 marlas land to Milki Ram , 3 kanals 9 marlas land to Ved Raj. Sale made by Bansi Ram and Milkhi Ram to Kashmiri Lal defendant No.12 regarding 3 kanals land vide sale deed 12.10.1957 and further sale by Kashmiri Lal to defendants Nos. 13 ad 14 is within the rights of Bachan Singh. Sale made by Bansi Ram of 2 kanals 11 marlas land to defendants Prem Chand and Ram Pal No.29 and 30 vide sale deed dated 9.1.1958 is within the rights of Bachan Singh. Sale made by Bansi Ram to defendant No.36 Sadhu Singh of 16 marlas land vide sale deed dated 15.1.1958 is also within the rights of Bachan Singh. Sale made by Bansi Ram and Milkhi Ram of 5 kanals land to Tek Singh, Kartar Singh and Mohinder Singh RSA No. 3253 of 2008 (O&M) 4 defendant No.15 to 17 is within the rights of Bachan Singh. These sales were made before application for partition was made and the civil court passed decree. These are valid sales. Ved Raj defendant had 3 kanals 9 marlas land from Khasra Nos. 420 to 427. The entry in revenue record regarding sale by him to defendants Nos. 67 to 71 from khasra No.420 to 427, exceeding 3 kanals 9 marlas land is invalid. v) Khasra Nos. 479 to 483 were jointly owned by Ruldu Ram (1/4share) Dr. Ram Nath and Prem Nath jointly (¼th share ) and Bachan Singh and Dharam Singh plaintiff jointly (½ share). Bansi Ram, Milkhi Ram and Ved Parkash defendant Nos. 77 were vendees of Bachan Singh. They were entitled to 10 kanals 11 marlas land in 42 kanals 6 marlas land. Sales made by Bansi Ram, Milkhi Ram and Ved Parkash over and above their shares are invalid. (Bansi Ram sold 8 kanals 8 marlas land to defendant No.78 while Milkhi Ram sold 5 kanals 9 marlas land to Tej Ram). Defendant Nos.79 to 86,88 ,89 are vendees ofd Data Ram deceased and Ram Nath and Prem Nath defendants. Their share are within the rights of their vendors. vi) Khasra Nos.420 to 427 (old Khasra No. 321) and Khasra Nos. 479 to 483 (old khasra No.320) are to be partitioned. These are assessed to the payment of revenue to the Govt., the Collector Sub-Division, Mansa or any gazetted Subordinate of the Collector duped by him in this behalf, shall partition the suit land in accordance with such declaration and in accordance with law (if any) for the time being in force RSA No. 3253 of 2008 (O&M) 5 relating to the partition or the separate possession of shares, as contemplated under Section 54 C.P.C. and order XX rule 18 (1) CPC”. However, the learned first Appellate Court allowed the appeal against them by setting aside judgment and decree of the trial Court with the following observations:- “I have carefully considered the contention advanced by the both the parties. The above cited authorities relied upon by the learned counsel for the respondents are on their own facts and not attracted in this case. In Chander's case (supra), it has been held that the sale effected during the pendency of the partition proceedings before the revenue office will be hit by the rule of lis pendens and the purchasers of undivided share pending partition proceedings takes only that property which is allotted on partition to the vendor. In the present case, the alienations were effected before the institution of the suit and even some of the alienees were made parties in the present suit but some of them were given up at later stage. So, the above cited authority is not attracted in this case. In Minakshi Saini case (supra) it has been held that alienation of property during the pendency of the suit is hit by the principle of lis pendens. This authority is again not attracted in this case as in the present case we are to see if the purchasers of the suit property who had purchased the share in the suit property before the institution of the suit have been made parties or not. Similarly, In Venkatarao Anantdeo Joshi's case (supra) the execution of 'Batai patra' i.e. tenancy of agricultural land was during the suit or partition. So, all the above cited authorities are on their own RSA No. 3253 of 2008 (O&M) 6 facts and are not attracted in this case. In the present case from the plaint itself it is clear that the plaintiffs have withdrawn their suit against some of co-sharers, who are necessary parties in the present suit for partition. In para 10 of the plaint, it is pleaded by the plaintiffs that Dharam Singh had 1/4th share in the land measuring 42 kanals 06 marlas comprised in khasra Nos. 479 to 483 for which he had applied for partition of his share but during the pendency of a partition application he has sold 111/476 share in the said land to Data Ram deceased, predecessor of defendant Nos. 74 and 75. After this sale he was left with 8/ 476 share in the land in dispute which is recorded in the revenue record. In para 13 (b) of the plaint, it is further pleaded that defendant Nos. 79 to 86,88 and 89 are the alienees of Data Ram deceased. So according to the own case of the plaintiffs, defendant No.89 was co-sharer and thus necessary in the present suit. In para 12 (b) of the plaint, it has been pleaded that land measuring 1 ½ bighas out of Khasra No.321 equal to 02 kanals 11 marlas was sold by Bansi Ram deceased vide registered sale deed dated 9.1.1958 originally in favour of Prem Chand and Ram Pal defendants which has also changed hands and the intervening vendees are not necessary parties because the said sale has been effected within the right of Bansi Ram and only the present occupants have been impleaded as defendant Nos. 32 to 35. Therefore, according to these averments contained in the plaint, defendant Nos. 33 being co-sharer and in possession of the suit land was necessary party. No doubt, the plaintiffs have originally impleaded defendant Nos. 33 and 89 but during the pendency of the suit, Counsel for the plaintiffs made a statement that on 23.12.1983 giving up suit against defendant Nos. 17,29 and 89. He further gave up relief against defendant No. 33 by RSA No. 3253 of 2008 (O&M) 7 making statement on 5.3.1984. Vide order dated 23.12.1983, learned trial court ordered to delete the names of defendant Nos, 17,29 and 89 from the array of defendants. Further vide order dated 5.3.1984 as per statement of counsel for the plaintiffs the name of defendant No.33 was struck off from the plaint as no relief was claimed against him. So, the suit against defendant Nos.,17,27,33 and 89 stands dismissed. Once a suit has been dismissed against a necessary party, the suit is liable to be dismissed as a whole. In partition proceedings every co-sharer is a necssary party. In Ram Mehar Vs. Surat Singh and others AIR 1989 Punjab & Haryana 307, it has been held by our own Hon'ble High Court that it is settled law that in a suit for partition all the parties are plaintiffs and defendants and without even one party the suit cannot proceed nor the matter can be settled. In partition there is chain reaction and the moment chain is broken at a place, the matter cannot be solved. Further in Sanatan Das Vs. Ahalya Di and others, AIR 1983 Orissa, 08, it has been held that in a suit for partition all persons who have interest in the subject matter of the suit are necessary parties. A partition suit is not competent without a necessary party. So, from the above discussion, it is evident that suit is not competent in absence of aforesaid defendants, who are necessary parties. In the present case, the case against the said defendants has been dismissed on the basis of statement made by the counsel for plaintiffs. So, the suit is liable to be dismissed as a whole from the judgment of learned trial court it is evident that the trial court was aware of the fact that some of the co- sharers have not been impleaded as parties in the present suit. While deciding issue No.1. the learned trial Court observed that even if some of the alienees of Milkhi Ram and Ved Ram or their further alienees are not RSA No. 3253 of 2008 (O&M) 8 impleaded. It is not fatal to the suit. At the time of filing of the suit jamabandi for the year 1978-79 was prevailing. Learned counsel for the appellants has pointed out of khatauni No.2428 of jamabandi for the year 1978-79 Baldev Singh, Krishan Kumar, Darshana Devi and Girdhari Lal and others whose names figure as co-sharers in red in the jamabandi for the year 1978-79 where reference of mutation No.12708 has been given have not been impleaded. In any case, the suit is bade for non-joinder of necessary parties in the absence of defendant Nos. 17,29,33 and 89, who were given up by learned counsel for the plaintiffs. So, the suit of the plaintiffs is liable to be dismissed on this score alone”. Thus, the basic substantial question of law alleged to be involved in the present appeal was framed to the effect that “ whether finding of the lower Appellate Court that defendant Nos.17,29,33 and 89 are necessary parties because suit was withdrawn against them, the suit became not-maintainable, is contrary to law and Appellate Court has committed a patent error in giving this finding ?. In the present second appeal, at the time of notice of motion on 19.3.2009, following submissions were recorded “Learned Senior Counsel appearing on behalf of the appellants contending that the finding of learned lower Appellate Court holding that suit qua some of the defendants was got dismissed on the basis of statement made by the counsel for the plaintiff, is not borne out from the record nor such concession was given before learned trial Court” Pursuant to notice of motion, learned counsel appearing on behalf of the respondents has brought to the notice of this Court that Mr.Ashwani Kumar, Advocate, who had appeared on behalf of the RSA No. 3253 of 2008 (O&M) 9 plaintiffs on 23.12.1983 had made a statement that he does not want to proceed against defendant No.17 (Mohinder Singh), defendant No.29 (Prem Chand) and defendant No.89 (Bhajan Singh), as a result of which a specific order was passed by learned Addl.Senior Sub Judge,on that date which reads as under: “Defendants at Sr. No. 1 to 5, 9, 12, 16, 19, 20, 23, 24, 26, 27, 28, 30, 31, 34, 36, 37, 43, 44, 48, 49, 51, 52, 53, 60, 63, 64, 67, 70, 71, 73, 75, 76, 77, 79, 81, 83, 87 and 88 served personally but they are absent they are therefore proceeds against expartie. Defendants at Sr. No.25 and 56 have refused to accept the service of summons. Copy of the summon and of the plaint are affixed at the outer door of the residential house of the defendants. They are absent, they are therefore proceeded against expartie. Remaining defendants be summoned on old P.F. To come up on 3-2-84. Counsel for the defendants has made the statement that the names of the defendants at serial no. 17,29 and 89 be deleted from the array of the defendants. So their names be deleted. To come up on 3-2-1984. A similar statement was suffered by learned counsel for the plaintiffs in respect of defendant No.33 on 5.3. 1984 that he wants that his name should be struck off from array of defendants. In respect of which, a specific order was passed by the trial Court on the same date, which reads thus:- “As per statement of counsel for the plaintiff, the name of defendant No.33 is struck off from the plaint as no relief is claimed against him. Defendants no.54 and 55 are served personally for today. They have not come present and are proceeded exparte. L.Rs. of deceased defendant Milkhi No.11 are reported to have refused the service for today. They are RSA No. 3253 of 2008 (O&M) 10 all numbering six are proceeded exparte. The counsel have appeared for defendants No. 43 and 72. Sh. Inderjit Singh Advocate and Gurdial Singh Sidhu Advocate have filed their wakaltnama. Defendants No. 32,45,57,58, 84 and 85 remain to be served. Their personal service is not feasible as per report of their process – server. Service be effected on them through affixation and Munandi. Munandi fee be paid within two days. Parshotam Singh defendant is minor. An application was moved by the counsel for the plaintiff to appoint his guardian. His father is stated to have died. His mother has not appeared to resist the suit. Sh. R.K. Manchanda Advocate is appointed as Guardian ad-litem for minor defendant. His fee is fixed Rs. 100/- to be borne by the plaintiff. He shall file written statement on behalf of minor defendant on the next date. Now the case is to come up on 5-4-1984”. In view of the contradictory statement made at the time of notice of motion, there is hardly anything left in this case to be adjudicated. Even for the sake of arguments, if it is presumed that order dated 19.3.2009 was incorrectly recorded, yet defendant Nos. 17,29,33 and 89 who are necessary parties in a suit for partition have been given up by the plaintiffs themselves. Therefore, in my view, the lower Appellate Court has rightly dismissed the suit of the plaintiffs on the ground of non-joinder of necessary parties. No other point has been argued before this Court. In view of my above discussion, I find no error in the judgment of learned first Appellate Court as there is no substantial question of law RSA No. 3253 of 2008 (O&M) 11 raised or canvassed before this Court for adjudication. Hence, the present is hereby dismissed, though with no order as to costs. February 18,2010 (Rakesh Kumar Jain) RR Judge