R. S. A. No. 4192 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4192 of 2010 (O&M) Date of Decision : April 27, 2011 Kuldip Singh .... Appellant Vs. Amrik Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sudeep Mahajan, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5078-C of 2011 : Learned counsel for the applicant-appellant states that jamabandis Annexure A-1 and Annexure A-2 have been produced in evidence in the trial court. Accordingly, application is allowed and Annexures A-1 and A-2 are taken on record, subject to all just exceptions. Main Appeal : Kuldip Singh – defendant, having lost in both the courts below, has filed the instant second appeal. Civil Suit No.280 of 2000, out of which the instant second R. S. A. No. 4192 of 2010 (O&M) 2 appeal has arisen, was filed by Amrik Singh – respondent no.1/plaintiff no.1 and his mother Resham Kaur (since deceased and represented by respondents no.2 and 3 as her legal representatives) against defendant- appellant Kuldip Singh, who is also son of Resham Kaur and brother of plaintiff no.1. The plaintiffs sought separate possession of 7/12th share by partition of four properties in suit. The plaintiffs alleged that the suit properties are joint and they want to partition the same. The defendant inter alia pleaded that property described in head note `b' of the plaint is agricultural in nature and is being used as Haveli, which is subservient to agriculture and therefore, Civil Court has no jurisdiction to partition the same. It was also pleaded that the suit properties and agricultural land jointly owned by the parties were partitioned between plaintiff no.1 and defendant and their father Mehanga Singh in the year 1994 and since then, the parties are in separate possession of their respective portions and plaintiff no.1 admitted the said partition vide writing dated 06.07.1994. Various other pleas were also raised. Kuldip Singh – appellant herein also filed Civil Suit No.279 of 2002 against Amrik Singh for permanent injunction restraining Amrik Singh from interfering in possession of Kuldip Singh over house in Khasra No.334/2 and Haveli comprised in Khasra No. 438 i.e. two of the four properties, of which partition was sought by Amrik Singh and Resham Kaur, alleging that Kuldip Singh is in exclusive possession thereof on R. S. A. No. 4192 of 2010 (O&M) 3 account of mutual partition effected between the parties and their father Mehanga Singh. Learned Civil Judge (Junior Division), Hoshiarpur, vide common judgment and decrees dated 03.08.2005, decreed the partition suit and passed preliminary decree of partition and partly decreed the injunction suit filed by Kuldip Singh restraining Amrik Singh from interfering in possession of Kuldip Singh over the properties in Khasra Nos.334/2 and 438 till partition. Kuldip Singh preferred two first appeals i.e. one appeal in each suit. Learned Additional District Judge, Hoshiarpur, vide common judgment and decrees dated 07.09.2010, dismissed both the appeals. Feeling aggrieved, Kuldip Singh has filed the instant second appeal in partition suit only. I have heard learned counsel for the appellant at considerable length and perused the case file. At the outset, it has to be noticed that there is finding by both the courts below in both the suits that the suit properties have not yet been partitioned. However, Kuldip Singh has not filed any second appeal in the injunction suit, which had been instituted by him. Consequently, finding recorded in the said suit, as affirmed in first appeal that the suit properties are still joint, has attained finality. In view thereof, the appellant cannot succeed in the instant second appeal qua the two properties involved in the R. S. A. No. 4192 of 2010 (O&M) 4 injunction suit. Learned counsel for the appellant vehemently contended that property described in head note `b' of the partition suit is agricultural land, as depicted by jamabandis Annexure A-1 and Annexure A-2 and therefore, Civil Court had no jurisdiction to partition the same. The contention, on first blush, appears to be very forceful, but on proper scrutiny, the same is found to be devoid of merit. Perusal of jamabandis in question reveals that out of two kanals area of Khasra No.438, 01 kanal 05 marlas area is barani and 15 marlas area is abadi. Learned counsel for the appellant is not aware if property described in head note `b' of the partition suit is abadi area of 15 marlas only or is the entire two kanals area of Khasra No.438. However, irrespective of the same, the contention, that property described in head note `b' of the partition suit is agricultural land, cannot be accepted in view of admission of appellant himself in the witness-box. The appellant categorically admitted that Khasra No.438 is not under cultivation and the same is abadi. In view of this admission of appellant himself in the witness-box, nothing survives for adjudication and the aforesaid contention has to be rejected. Learned counsel for the appellant next contended that writing Ex.D-1 dated 06.07.1994, on which Amrik Singh – plaintiff no.1 appended his signatures, proves that there has been mutual partition between the parties. Reference in this regard was also made to pleading of Amrik Singh R. S. A. No. 4192 of 2010 (O&M) 5 in the injunction suit that they are in separate possession of the suit properties and agricultural land under mutual arrangement. Reference was also made to testimony of Amrik Singh to the same effect. It was accordingly contended that there has been mutual partition between the parties. I have carefully considered the aforesaid contentions, but the same are completely unacceptable. Mutual arrangement for separate possession, cultivation or enjoyment of the joint property among the co- sharers does not amount to legal partition. It is well settled that co-sharers may enter into mutual arrangement or settlement to properly utilize the joint property through separate possession or cultivation or enjoyment. Such co- sharer in exclusive possession of part of the joint property may even transfer possession thereof by alienation to the alienee, but such alienation is also deemed to be alienation of share of the alienor in the joint property and the same is subject to partition. Reference in this regard may be made to Full Bench judgment of this Court in the case of Bhartu vs. Ram Sarup reported as 1981 P. L. J. 204. Consequently, merely because there was mutual arrangement among the co-sharers for separate possession or utilization or enjoyment of the joint properties, it does not amount to partition thereof. It may be added that no entry of alleged partition was made in the revenue record. Moreover, writing dated 06.07.1994 has not even been proved. R. S. A. No. 4192 of 2010 (O&M) 6 For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below is fully justified by the evidence on record and is supported by detailed reasons recorded by the courts below. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. April 27, 2011 ( L. N. MITTAL ) monika JUDGE