RSA No.2868 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2868 of 2006 Date of decision:4.12.2008 Chhater Pal ......Appellant Versus Rati Ram ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Jagat Singh Tanwar, Advocate for the appellant. Mr. M.L. Saini, Advocate for the respondent. * * * This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent for partition has been decreed and the plaintiff and defendant have been held to be owner to the extent of half share each of the property in dispute. Briefly, the case of the plaintiff is that he is owner of half share in the disputed property shown in red colour in the site plan and marked with letter ABJK consisting of four rooms, one Chobara and a chowk. It is further claimed that as per the memorandum of partition dated 23.1.1961 of the family settlement the house in dispute is joint of the parties in which the plaintiff has half share. The plaintiff had filed a civil suit No.100 of 26.2.1986 titled as Rattipal v. Musaddi Singh etc. decided on 23.3.1991 in which share of Amar Singh was held to be partitioned and it was held that Rati Ram and Chhater Pal was joint. The defendant has also denied the other averments of the plaintiff and raised preliminary objection qua locus- standi, estoppel, cause of action, time barred and special costs under RSA No.2868 of 2006 2 Section 35A CPC and sought the dismissal of the suit. It is further averred that the defendant had tried to take possession of the land excess of his share. Hence, the suit for partition. Upon notice, the defendant appeared and filed written statement. It was alleged that the suit land has been partitioned by way of family settlement in the year 1961 and that since then the parties are coming in their respective possession separately. The plaintiff and defendant are living separately since 1967. The defendant has also denied the other averments of the plaintiff and raised preliminary objection qua locus-standi, estoppel, cause of action, time barred and special costs under Section 35A CPC and sought the dismissal of the suit. After hearing learned counsel for the parties and having gone through the record, the trial Court decreed the partition suit of the plaintiff vide impugned judgment and decree dated 17.8.2002. Feeling aggrieved, the defendant filed an appeal which was also dismissed by the Additional District Judge, Narnaul vide judgment and decree dated 17.1.2006. While dismissing the appeal, the Lower Appellate Court observed as under:- “Admittedly, plaintiff filed a civil suit for partition titled Rattipal Singh vs. Mussadi Singh etc. on 26.2.1986 and the same was decided on 23.3.1991. From the perusal of this judgment, it reveals that memorandum of partition Ex.P1 was found as genuine. As per Ex.P1 one partition was allotted to Amar Singh and the remaining portion was allotted to plaintiff and defendant in half share each and in that suit it was held that the joint property of the plaintiff has already been partitioned vide Ex.P1 From this, it is clear that Rati Pal and Chhatterpal Singh were RSA No.2868 of 2006 3 joint and Amar Singh was given share in that partition. Ex.P1 clearly establishes that in the year 1961 one portion of the Haveli was allotted to Amar singh and the remaining portion was left joint in equal share for plaintiff and defendant Chhatterpal. So, now the subject matter is only the joint portion of the plaintiff and defendant and not of Amar Singh. Now the question arises what is the share of the plaintiff and defendant in the suit property. As per the case, plaintiff and defendant are owners of ½ share of the suit property. As per the site plan Ex.PW3/A the portion shown in red colour marked with the letters ABJK is the ground floor. Admittedly, plaintiff and defendant have no dispute over this portion. The only dispute is with regard to the room which was stated to be given by plaintiff to defendant in lieu of the use of his bricks and stones by him. Defendant when appeared as DW3 admitted that he has three pucca rooms, half chobara and 1/4th share in the joint chowk whereas the plaintiff has only a Poli, two rooms and Chhappar. From the pleadings as well as the oral evidence, it is clear that the plaintiff has less portion in his possession then he is entitled.” Still not satisfied, the defendant has filed the present appeal in this Court challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have committed error of law by misreading and non- reading of material pleadings of the parties and the evidence on record and the judgment and decrees of the Courts below are based on RSA No.2868 of 2006 4 assumptions and are liable to be set aside. Learned counsel has further argued that the parties to the suit are residing separately since long and it has been proved on record that a partition has taken place and therefore, the Courts below have erred while decreeing the suit. I have heard learned counsel for the appellant. However, I find no force in the contentions raised by the learned counsel. The Courts below after perusing the judgment dated 23.3.1991 passed in earlier suit have recorded a finding of fact that as per the memorandum of partition Ex.P-1, one portion of the property was allotted to Amar Singh and the remaining portion was allotted to the plaintiff and defendant half share each and in that suit, it was held that the share of the appellant and the respondent was joint in the earlier suit and only the share of Amar Singh was separated. Learned counsel for the appellant was unable to challenge the above finding of fact recorded by the Courts below. Thus, I do not find any illegality in the judgment and decrees of the Courts below. No substantial question of law arises. Dismissed. December 4, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.2868 of 2006 5 RSA No.2868 of 2006 6