R.S.A.No. 3405 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3405 of 2008 (O&M) Date of decision: 3.7.2009 Vijay Kumar and another ......Appellants Versus Jeewan Lal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.R.Mahajan, Advocate, for the appellants. **** SABINA, J. Plaintiffs Jeewan Lal, Amit Kumar and Rama Rani filed a suit for partition by metes and bounds by way of separate possession of plot measuring 169 square yards. The suit of the plaintiffs was decreed by the Civil Judge (Jr.Divn.) Amritsar vide judgment and decree dated 18.9.2006. Aggrieved by the same, defendants Vijay Kumar and Roshan Lal filed an appeal and the same was dismissed by Additional District Judge, Amritsar vide judgment and decree dated 26.7.2008. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the Additional R.S.A.No. 3405 of 2008 (O&M) 2 District Judge, Amritsar in para Nos. 2 to 6 of impugned judgment, are as under:- “It is the case of the plaintiffs that Ashok Kumar son of Roshan Lal and Predecessor-in-interest of the plaintiffs along with defendant No.1 purchased the property vide registered sale deed dated 16.4.93 for sale consideration of Rs.20,000/- from Raj Kumar and Suresh Kumar sons of Amritsaria Ram of Verka, tehsil and District Amritsar. During his life time, Ashok Kumar constructed one shop and a godown in the property in dispute as he was doing the business of Hardware, tyres and tubes etc. and was running the shop therein. On 19.6.98 Ashok Kumar died intestate. After his death, the plaintiffs are the only legal heirs of deceased Ashok Kumar, they are therefore, entitled to one half share out of the property in dispute. However, after the death of Ashok Kumar, defendants have turned the plaintiffs out of their house forcibly in three wearing apparels and the plaintiff Rama Rani is presently living along with plaintiffs No.1 and 2 with her parents. Since the defendants were not admitted the claim of plaintiffs and were not prepared to partition the property, to give the due share of the plaintiffs to R.S.A.No. 3405 of 2008 (O&M) 3 then, hence the necessity has arisen to file the present suit. 3. Plaintiffs brought this suit for partition by way of metes and bounds of plot N o.1046 more fully detailed and described in the heading of the plaint. 4. As plaintiffs No.1 and 2 are minors, the suit has been filed though their mother Rama Rani, plaintiff No.3 and natural guardian. 5. The suit has been resisted by defendants. In the written statement filed by defendants No.1 and 2, several preliminary objections have been raised on the grounds of maintainability , valuation of suit etc. On merits, it has been denied if Ashok Kumar and defendant No.1 purchased the property in question vide sale deed dated 16.4.2003 for a consideration of Rs.20,000/-. According to the defendants, Ashok Kumar was physically handicapped. He was having very weak eye sight and was not able to do any work. The property was purchased by his father Roshan Lal defendant No.2 along with defendant No.1 for a sale consideration of Rs. 20,000/- from Raj Kumar and Suresh Kumar son of Amritsaria Ram. The entire sale consideration was contributed by defendant No.2 from his own pocket and nothing R.S.A.No. 3405 of 2008 (O&M) 4 was contributed by Ashok Kumar. It was also denied if Ashok Kumar during his life time had constructed one shop and a godown in the property in dispute. It has further been denied if Ashok Kumar was doing any business in the shop. In fact, the shop was being run by defendant No.2 under the name and style of R.L.Hardwara Store from the very beginning in the capacity of a tenant under defendant No.1 at a monthly rental of Rs.100/- and defendant No.2 had been paying the rent regularly to defendant No.1. The entire construction on the plot has been raised by defendant No.1. It has also been denied if the plaintiffs are the only legal heirs of Ashok Kumar. According to the defendants, Seeta Devi, mother of Ashok Kumar is also one of the Class-I legal heirs. Other averments made in the plaint have been denied and in the end, a prayer for dismissal of the suit has also been made. 6. In a separate written statement filed on behalf of defendant No.3, it has been pleaded that the replaying defendant being the mother of deceased Ashok Kumar is also one of the legal heirs of Ashok Kumar and is entitled to share of Ashok Kumar in equal share along with the plaintiffs. R.S.A.No. 3405 of 2008 (O&M) 5 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to partition by metes and bounds by way of separate possession as prayed for? OPP 2. Whether the plaintiffs are entitled to permanent injunction as prayed for? OPP 3. Whether Ashok Kumar son of Roshan Lal and defendant No.1 have purchased the property in dispute vide registered sale deed dated 16.4.1993? OPP 4. Whether the plaintiffs are only leagal heirs of deceased Ashok Kumar? OPP 5. Whether the suit of the plaintiffs is not maintainable? 6. Whether the plaintiffs have come to the court with clean hands ? OPD 7. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The case of the plaintiffs was that Ashok Kumar had purchased the suit property along with Vijay Kumar-defendant No.1 vide sale deed dated 16.4.1993 for valuable consideration of Rs.20,000/- from Raj Kumar and Suresh Kumar. Ashok Kumar constructed one shop and godown in the property in dispute and was R.S.A.No. 3405 of 2008 (O&M) 6 running his business. However, Ashok Kumar died on 19.6.1998 and hence, plaintiffs being his legal heirs were entitled to half share in the suit property. Plaintiffs were, however, thrown out of the property in dispute by the defendants. The case of the defendants, on the other hand, was that Ashok Kumar was a physically handicapped person and was having weak eye sight. Property had been purchased by defendant No.2 along with defendant No.1 for a sale consideration of Rs.20,000/- from Raj Kumar and Suresh Kumar. The entire sale consideration was contributed by defendant No.2 Roshan Lal, father of Ashok Kumar. The parties are closely related to each other. The execution of the sale deed in question is not much in dispute. The dispute is only as to whether the sale deed had been executed by the vendors in favour of Ashok Kumar and Vijay Kumar-defendant No.1 or in favour of Roshan Lal-defendant No.2 along with defendant No.1. Both the Courts below have held that the sale deed Ex.P-1 clearly shows that the property in question was purchased by Ashok Kumar and Vijay Kumar sons of Roshal Lal. Apparently, after the death of Ashok Kumar, dispute has arisen between the plaintiffs, who are the widow and minor children of deceased Ashok Kumar, and defendants. The plea taken by the defendants that defendant No.2 was a tenant in the suit property was not substantiated on record. In fact, defendant No.1 himself stated that Roshan Lal was sitting on the suit property as his father and not in any other capacity. It has R.S.A.No. 3405 of 2008 (O&M) 7 also been noticed by the learned Additional District Judge, Amritsar that Vijay Kumar-defendant No.1, while appearing in the witness box as DW-6 had admitted that he was ready to give half share in the suit property to the plaintiffs. In these circumstances, no interference is warranted by this Court. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 03, 2009 anita