RSA No.2112 of 2004 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2112 of 2004 Date of Decision: 17.12.2008 Sohan Lal and others ..Appellants. Vs. Garib Dass and others . ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Ranjit Saini, Advocate for the appellants. Mr.Vishal Gupta, Advocate for the respondents. RAKESH KUMAR JAIN, J. The defendants are in second appeal. The case of the plaintiff is that suit land (Bara) situated in village Sabapur bearing Khasra No.204 measuring 5 Marlas i.e. 22' x 66' was earlier owned by his father Mangal Ram (defendant No.3). In a family settlement, a 3 feet wide common passage along with northern side/length of the Bara was reserved as a common passage and the remaining Bara measuring 19' x 66' was divided in three portion of 19' x 22' each and the central portion depicted by letters ABCD in red colour in the site plan was given to the plaintiff to be exclusively owned and possessed by him while the portion situated towards the east thereof was given to Harshi Ram (defendant No.1) and portion towards west fell to the share of Chamela Ram (defendant No.2). In the said family settlement, defendant No.3 RSA No.2112 of 2004 -2 - Mangal Ram was also given the land of Khasra No.233(0-1) Gair Mumkin Khada Khad which was kept joint of the plaintiff and defendants No.1 and 2 in equal shares as it was being used for putting manure. Chamela Ram (defendant No.2) got filed a suit from his grand sons Sohan Lal, Subhash Chand and Sanjeev Kumar (defendants No.4 to 6) against Mangal Ram (defendant No.3) through his wife Smt.Prito Devi as defendants No.4 to 6 were minors. The Civil Suit No.320/94 titled as Sohan Lal Vs. Mangal Ram was filed on 23.4.94 in respect of Khasra Nos.204(0-5) and 233(0-1) in which collusive decree was passed in favour of defendants No.4 to 6 by the Court of Sh.D.V.Singh, Sub Judge, Jagadhari on 3.5.1994. In the present suit, Garib Dass (plaintiff) sought a declaration to the effect that he is exclusive owner in possession of the land in dispute (Bara) measuring 19”x22” shown by letters ABCD situated in revenue estate of village Sabapur, H.B.No.121, Tehsil Jagadhari, District Yamuna Nagar and also owner in possession to the extent of 1/3 share in the land measuring 1 marla (Gair Mumkin Khada) and for declaring the judgment and decree dated 3.5.1994 in the Civil Suit No.320/1994 titled as Sohan Lal Vs. Mangal Ram in favour of defendants No.4 to 6 in respect of land falling in Khasra Nos.204(0-5) and 233(0-1) obtained from the Court of Sub Judge, Jagadhari dated 3.5.1994 as illegal, null and void. In the written statement, besides taking the preliminary objections about maintainability and locus standi, it was submitted on merits that the entire property in the hands of Mangal Ram (defendant No.3) was joint Hindu Family Property, being Karta who partitioned the entire property among his sons (plaintiff and defendants No.1 and 2). It was alleged that defendant No.3 himself gave Bara in dispute and Khada Khad to defendants No.4 to 6 by way of civil court decree dated RSA No.2112 of 2004 -3 - 3.5.1994, therefore, they have become joint owners in possession. The plaintiff filed replication controverting the contents of the written statement and reiterated the stand taken in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: (i)Whether the plaintiff is owner in possession of the land detailed in head note of the plaint? OPP. (ii)Whether the decree dated 3.5.1994 passed in civil suit No.320 of 1994 by the Court of Sh.D.V.Singh, the then Sub Judge, Jagadhari in the case titled as Sohan Lal etc. Vs. Mangal Ram is absolutely illegal, null and void and not binding upon the plaintiff? OPP. (iii)Whether the plaintiff is also owner in possession to the extent of 1/3rd share in the land comprised in Kh/Khatauni No.267/346? OPP. (iv)Whether the plaintiff is entitled to injunction as prayed for? OPP. (v)Whether the plaintiff has no locus standi to file the present suit? OPD. (vi)Whether the suit is not maintainable in the present form? OPD. (vii)Relief. In order to prove his case, plaintiff Garib Dass examined himself as PW1 and Om Parkash as PW2 whereas defendants have examined Chamela Ram as DW1, Balwant Singh as DW2 and Ranjit Singh as DW3. The learned trial Court vide its judgment and decree dated 23.11.2002 dismissed the suit of the plaintiff whereas the learned first Appellate Court decreed the suit vide its judgment and decree dated 7.2.2004. It has been contended by the learned counsel for the appellants RSA No.2112 of 2004 -4 - that plaintiff has failed to aver and prove the alleged fact of partition of the property in dispute, therefore, he can not take the advantage of the statement of DW1 Chamela Ram. On the contrary, learned counsel for the respondents has submitted that the plaintiff has categorically pleaded that the property in dispute had already been partitioned between the parties by way of family settlement which took place during the life time of Mangal Ram (defendant No.3) and all the brothers were given portion to the extent of 19` x 22' each out of the disputed land (Bara) and only 3 feet passage was retained as a common passage. I have heard learned counsel for the parties and have perused the record with their assistance. The learned first Appellate Court has taken into consideration the questions of fact as to whether the plaintiff has become the owner in possession of the suit property to the extent of 1/3rd share by way of family settlement; whether respondent No.3 Mangal Ram was competent to suffer a decree on 3.5.1994 and whether the appellant has no locus standi to file the suit during the life time of his father. While deciding question No.1, it was held that Chamela Ram (DW1) in his cross-examination has admitted that the suit property was transferred by defendant No.3 Mangal Ram in Panchayat in equal shares in the name of three brothers about 10-12 years back. It was held that once the defendant himself admits that there was a transfer of the shares about 10-12 years prior to his making a statement in the Court on 19.2.2002, it means that Mangal Ram had no transferrable rights to suffer a decree on 3.5.1994 in favour of defendants No.4 to 6. It was held that no one can pass a better title than he himself possess. Learned counsel for the appellants has failed to raise any question of law much less RSA No.2112 of 2004 -5 - substantial for the purpose of adjudication of this appeal. In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed without any order as to costs. (Rakesh Kumar Jain) 17.12.2008 Judge Meenu