R.S.A No. 3502 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3502 of 1985 (O&M) Date of decision:- 08.11.2011 Balbir Singh and another ...Appellants Versus Singh Ram and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. M.S. Rana, Advocate for Mr. Abhishek Kapoor, Advocate for the appellant. Mr. R.S. Chahar, Advocate for respondent No. 2 RITU BAHRI J.(Oral) This regular second appeal is against the judgment of the trial court dated 26.08.1983 and judgment dated 12.09.1985 passed by learned Additional District Judge (III), Rohtak. Plaintiffs-appellants filed a suit for prohibitory injunction claiming that the property in dispute had fallen to his share in family partition. Originally the property was owned by late Sh. Ram Lal. The plaintiffs-appellants are sons of Duli Chand who was brother of the father of of Singh Ram namely Jug Lal, Jug Lal and Duli Chand had another brother Hari Singh who died issueless in the year 1972. Hari Singh's share was given to Duli Chand father of the plaintiffs-appellants. In the year 1955, father of the plaintiffs-appellants and defendant No. 1, partitioned village immovable property by way of family partition whereby one constructed and three R.S.A No. 3502 of 1985 (O&M) -2- gitwaras came in the share of Duli Chand. After the death of Hari Singh in the year 1972, they started living separately from their father. One more gitwara as detailed in para 3-B of the plaint to the extent of 2/3 share came in the share of the plaintiffs-appellants. Thereafter, they had constructed their own houses in the plot as detailed in paragraph 3-B of the plaint and the gitwara share in para 3-D of the plot, they prepare cow dung cakes and keeps koorari and use it as owners. However, case of the plaintiffs-appellants was that father of defendant No. 1 was to pay a loan of ` 4000/- and the same was paid by the father of the plaintiffs and in consideration thereof, Jug Lal had given the above three gitwar to the father of the plaintiffs by relinquishing his claim in these gitwars. The plaintiffs are owners in possession since 1972 of these gitwars and Singh Ram-defendant without any right or title in this gitwar wanted to interfere with the possession of the plaintiffs. On notice, the defendants filed a written statement contested the suit on the ground that defendant No. 1 was exclusive owner in possession of the gitwar in question and vide registered sale deed dated 14.9.79 he sold it to Dalel defendant No. 2 and since then defendant No. 2 is the owner in possession of the gitwar in question. Defendant No. 1 has filed a suit for partition against the plaintiffs as plaintiffs are in possession of the property in excess of their due shares. They further denied that any debt was acquired by the father of the plaintiffs. They have further denied this fact that the defendant had abandon his claim over the plot in question. Defendant No. 1 being an exclusive owner of the plot had sold the plot to defendant No. 2. R.S.A No. 3502 of 1985 (O&M) -3- Plaintiffs-appellants filed a suit No. 817 of 1979 against the defendants regarding the property purchased by the defendant No. 2 from defendant No. 1 and the same was dismissed on 18.2.1980, therefore the present suit is barred under Order 2 Rule 2 of the Code of Civil Procedure (for short 'the Code') and Section 11 of the Code. On 23.03.1981, the trial Court framed the following issues:- 1. Whether there was any private partition between the predecessor in interest of plaintiffs and defendant No 1? OPP 2. If issue No. 1 is proved, whether the property mentioned in para 3(d) of the plaint was allotted to the plaintiffs? OPP. 3. Whether the suit is time barred? OPD 4. Whether the plaintiffs are estopped from filing the suit by their own act and conduct? OPD. 5. Whether the suit is not maintainable in the present form as alleged? OPD 6. Whether the suit is barred by the order 2 Rule 2 and section 11 of the CPC?OPD. 7. Whether the suit is bad for non-joinder of necessary parties and cause of action? OPD. 8. Relief. The burden to prove issue No. 1 that there was any private partition between the predecessor in interest of plaintiffs and defendant No 1 was on the plaintiffs. In order to prove this issue in their favour, all the P.W's appeared and have stated that the partition/settlement had taken place about the property. However, they were not able to give any proper date on which date this partition had taken place. No documentary proof R.S.A No. 3502 of 1985 (O&M) -4- was led by the plaintiff on the file regarding the settlement. Plaintiffs did not produce the will executed by Hari Singh in favour of the plaintiffs. Further not even a single word has been stated by P.W's that father of the plaintiff had given Rs. 4,000/- in lieu of debt. The trial Court gave the finding that the plaintiffs have failed to prove the factum of partition between the predecessor-in-interest of the parties, therefore, issue No. 1 was decided in favour of the defendants and against the plaintiffs. In view of the findings given on issue No. 1, issue Nos. 2 was also decided in favour of the defendants and against the plaintiffs. On issue No. 4, trial Court after examining the documents Ex D-1, D-12 and D-13 has held that plaintiffs have filed a suit for permanent injunction against the defendants and the same was dismissed as withdrawn and therefore dismissed as withdrawn wil play against the plaintiffs as estoppel. So, this issue was decided in favour of the defendants and against the plaintiffs. In view of the findings given in issue Nos. 1 and 2, the suit filed for permanent injunction was held to be not maintainable, therefore, issue No. 5 was also decided in favour of the defendants and against the plaintiffs. Since the plaintiff failed to prove that they had got this suit property by way of partition, the suit was dismissed. In appeal, the Appellate Court have affirmed the findings given by the trial Court and has observed that the partition as per the plaintiff took place in the year 1955. Hari Singh had given his share to Duli Chand through will. When the partition took place in the year 1955 at that time Hari Singh was alive, therefore, Duli Chand could not get 2/3 share in the joint property of R.S.A No. 3502 of 1985 (O&M) -5- the parties. Hari Singh had got three gitwars while Duli Chand and Jug Lal had got one house each by way of partition. All the witnesses of the plaintiffs have given separate years of partition. Sunhera (P.W.2 ) is resident of village Garnothi and is brother in law of Singh Ram and has stated that about 12-13 years back, partition had taken place between them in which Hari Singh had got three Gitwars while Duli Chand and Jug Lal had got one house each. P.W.4-Baljit Singh, who is one of the plaintiffs, has stated that partition took place 15-16 years back. As per the plaintiffs, the partition took place in the year 1955. There is a clear discrepancies in the statements of the plaintiffs with regard to the time etc. The learned Appellate Court after taking into consideration the materials brought on the file has held that learned trial Court has rightly come to a conclusion that no partition as alleged by the plaintiffs ever took place and gitwar in question did not come to their share. Accordingly, the findings of the learned trial Court on issues Nos. 1 and 2 are confirmed by the lower Appellate Court. The lower Appellate Court has dismissed the appeal as the plaintiffs have failed to prove by leading satisfactory evidence that they are in fact in possession of the gitwar in dispute In view of the discrepancies in the evidence led by the plaintiffs, the findings recorded by both the Courts below calls for no interference. No substantial question of law arises for consideration. Accordingly, R.S.A is dismissed. November 08, 2011 ( RITU BAHRI ) G.Arora JUDGE