R.S.A.No. 2299 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2299 of 2007 (O&M) Date of decision: 17.12.2009 Hari Parkash ......Appellant Versus Ram Kumar .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Anil Kshetarpal, Advocate, for the appellant. Mr.Jitender Singla, Advocate, for the respondent. **** SABINA, J. Plaintiff-appellant filed a suit for separate possession by way of partition and permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Jagadhari vide judgment and decree dated 17.2.2005 . In appeal, the said judgment and decree were upheld by the Additional District Judge, Jagadhari vide judgment and decree dated 14.3.2007. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The brief facts leading to filing of the present R.S.A.No. 2299 of 2007 (O&M) 2 appeal are that the plaintiff who is real uncle of the defendant has filed the present suit against the defendant inter alia on the grounds that the parties to the suit are joint owners of the disputed property. He is owner of 2/3rd share whereas defendant has 1/3rd share in the disputed property. The dispute property has not been partitioned by metes and bound and now the plaintiff does not want to keep his share joint with the defendant. He asked the defendant to get the disputed property partitioned, but, he put off the matter on one pretext of the other and ultimately, few days back he was threatened to alienate the specific portion of the disputed property or to change the existing position by raising further construction without right to do so. Hence, this suit. 3. On notice, defendant appeared and filed his written statement controverting the claim put forth by the plaintiff. The relationship between the parties has been admitted. However, it is alleged that the disputed property and other properties belonging to the family was partitioned vide partition deed dated 10.7.1987 and in pursuance thereof the disputed property had fallen to the exclusive lot of Om Parkash, father of the answering defendant and thereafter, the answering defendant has constructed his residential house and established an atta R.S.A.No. 2299 of 2007 (O&M) 3 chakki in the disputed property. It is alleged that revenue entries are also in favour of the answering defendant. The plaintiff never objected to construction of residential house or establishment of atta chakki by the answering defendant over the disputed property, but, now after a period of 15 years he has filed the present suit with malafide intention. While denying all the other averments made in the plaint it is alleged that the suit of the plaintiff is not maintainable and the same is bad for partial partition as whole property of the family has not been included in the suit as well as for non-joinder and mis- joinder of the necessary parties. The plaintiff is guilty of concealment of material facts and has no locus standi to file the present suit. The suit is false and frivolous and is liable to be dismissed with special costs under Section 35-A CPC. Thus, dismissal of the suit was prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to separate possession by partition of 2/3rd share of the suit property? OPP 2. If the above issue is proved, whether the plaintiff is entitled to the relief of permanent injunction? OPP 3. Whether the suit is bad for non-joinder and mis-joinder R.S.A.No. 2299 of 2007 (O&M) 4 of parties? OPD 4. Whether the suit is not maintainable and liable to be dismissed with special costs? OPD 5. Relief. Learned counsel for the appellant has submitted that there was no dispute regarding the fact that Ex.D-1, alleged family partition, could be looked into for collateral purposes as the same was not registered. However, the said family partition had never been acted upon. The plaintiff had sold the khasra number which had allegedly come to the defendant Om Parkash by way of family settlement. From this, it was evident that, in fact, the partition Ex.D-1 had never been acted upon. Learned counsel for the respondent, on the other hand, has submitted that the family partition Ex.D-1 had been duly acted upon. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Learned Additional District Judge, while dealing with the argument raised by learned counsel for the appellant, has held as under:- “35. Learned counsel for the appellant has drawn my attention to certain documents to show that the alleged mutual partition dated 10.7.1987 was never acted upon as all the three brothers have been dealing with the suit R.S.A.No. 2299 of 2007 (O&M) 5 property. It is pertinent to mention that during the pendency of the appeal an application was filed by the appellant for leading the additional evidence. Said application for additional evidence was allowed by my learned Predecessor vide order dated 28.9.2005 and the plaintiff-appellant has produced the documents Ex.P-4 to Ex.P-13 in additional evidence during the pendency of the appeal. Ex.P-4 is the copy of plaint of civil suit No.550 filed on 19.7.1995 by defendant Ram Kumar against his father Om Parkash for seeking declaration to the effect that he is owner in possession of the land measuring 2 K- 13M being 1/3rd share of land measuring 8 kanals comprised of khasra No.26//31 (8-0). In this suit Om Parkash father of the defendant had filed admission written statement, copy Ex.P-5 and the said suit of defendant Ram Kumar was decree vide judgment dated 26.9.1995, certified copy Ex.P-6. Certified copy of decree sheet is Ex.P-8. On the basis of this decree mutation No.483 dated 22.11.1995, copy Ex.P-10 was sanctioned in favour of defendant Ram Kumar. These documents cannot show that mutual partition was not acted upon because Om Parkash has transferred 1/3rd share out of khasra no.26//31 in favour of his son Ram Kumar. It may be possible that Om Parkash might have intended to R.S.A.No. 2299 of 2007 (O&M) 6 transfer only 1/3rd share out of this khasra number to his son Ram Kumar. Ex.P-9 is the copy of mutation No.428 which shows that Som Dutt has transferred his land in favour of plaintiff Hari Parkash vide civil court decree dated 5.4.1991. He also transferred 1/3rd share out of khasra No.26//31 to plaintiff Hari Parkash. There is no evidence to show that defendant Ram Kumar or his father Om Parkash were party to the civil court decree dated 5.4.1991 or any notice was given to the defendant or his father Om Parkash at the time of sanctioning of mutation No.428 dated 20.7.1992 on the basis of said decree. Mutation Ex.P-11 shows that plaintiff Hari Parkash has sold his land to Magesh Kumar etc. vide sale deed dated 3.12.2003. Khasra No.26//31 does not figure in this mutation. Similar is the position regarding mutation No.12 vide which Hari Parkash plaintiff has sold his land to Om Parkash etc. vide sale deed dated 17.12.2003. In this mutation also khasra Number 26//31 does not figure. In the copy of jamabandi Ex.P-13 for the year 2000-2001 ownership of the plaintiff has been shown to the extent of 2/3rd share in khasra no.26//31 which is obvious because mutation partition was never reported to the revenue authorities, however, this entire khasra number has been shown in possession of Ram Kumar co-sharer i.e. R.S.A.No. 2299 of 2007 (O&M) 7 defendant.” Thus, the appellant had failed to establish that the khasra number, which had come to the share of defendant as per Ex.D-1, had been sold by the appellant. Learned counsel for the appellant has failed to counter the observations made by learned Additional District Judge. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 17, 2009 anita