R.S.A.No. 3391 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3391 of 2007 (O&M) Date of decision: 10.8.2009 Hari Singh ......Appellant Versus Sant Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Mohd.Yusuf, Advocate, for the appellant. **** SABINA, J. Plaintiff Hari Singh filed a suit for separate possession, which was dismissed by the Civil Judge (Sr.Divn.) Rajpura vide judgment and decree dated 12.1.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Patiala vide judgment and decree dated 25.7.2007. 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. Brief facts of the case of the plaintiff are that the defendants are uncles of the plaintiff, descending R.S.A.No. 3391 of 2007 (O&M) 2 from the common ancestor Mehama Singh. Original village of the parties is Haryoli, Tehsil Rajpura and thereto the share of the parties is 1/3rd each. Suit property is situated at village abadi of Bahori, which is residential house along with court-yard shown in the site plan, and is also joint, in which each of the party has got 1/3rd share each. Parties live in both the village by visiting frequently. So, the suit property is jointly owned and possessed by the parties, in equal shares, each, having 1/3rd share. Due to differences between the parties, plaintiff is now not interested in keeping the housing property in dispute, as shown in the site plan, to be joint and wants his share to the extent of 1/3rd share, separated by metes and bounds. Plaintiff several times requested the defendants to separate his 1/3rd share in the housing property in dispute by metes and bounds, but they have refused to do so. Hence, the suit. 3. Notice of the suit was served upon the defendant, who appeared their counsel and contested the suit by filing written statement, in which they submitted that the suit property is exclusively owned and possessed by the defendant. Parties had their agricultural land as well as house property in village Bahori and also in village Haryoli. Parties had made a settlement and all the rights R.S.A.No. 3391 of 2007 (O&M) 3 and appartences including the residential house i.e. house in dispute were given to the defendant. The agricultural land as well as all rights and appartences including the residential house at village Haryoli were given to the plaintiff, as such decree was passed by the court of senior Sub Judge, Ambala on 1.2.1993 on the basis of above said settlement. Therefore, the plaintiff has no share and no concern with the property in dispute. The plaintiff had filed a similar suit regarding the property in dispute in the court of Civil Judge (Jr.Divn.) Rajpura, vide suit No.56/12.2.1997 titled as Hari Singh v. Sant Singh and Amarjit Singh, which was dismissed on 2.5.98. Plaintiff has now changed the boundaries to conceal the factum of previous suit. Suit property has been wrongly described in the present suit by giving the wrong directions by substituting the name of Inder Singh by the name of Tarlochan Singh, who is in fact son of Inder Singh, who has already died. Present suit is, therefore, barred by the principle of resjudicata. Plaintiff has no concern whatsoever with the suit property. Defendants have also taken some additional pleas that the suit is not maintainable in the present form, present suit is barred by principle of resjudicata and the defendants are entitled to special compensatory costs. They, therefore, prayed that R.S.A.No. 3391 of 2007 (O&M) 4 the suit of the plaintiff may be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for possession by way of partition of residential house and court yard to the extent of 1/3rd share as shown in the site plan, as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether defendant is entitled for compensatory costs of under Section 35-A CPC? OPD 4. Whether the suit of the plaintiff is barred by principle of resjudicata? OPD 5. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Hari Singh-plaintiff had filed a suit for separate possession by way of partition of residential house. Earlier the agricultural land was got partitioned by the parties vide judgment and decree Ex.D-6 and D-7 respectively. The case of the plaintiff further is that he had filed another suit but the same was got dismissed as withdrawn and it had no bearing on this case. The case of the defendant, on the other hand, is that the house in dispute was included in agricultural property. The suit property had already been partitioned. The house in dispute had R.S.A.No. 3391 of 2007 (O&M) 5 fallen to the share of the defendants and hence, the plaintiff had no concern with the same. Learned trial Court after appreciating the evidence on record held that the plaintiff had failed to prove the site plan in the present suit. Only sides had been mentioned in the heading of the plaint but the dimension of the suit property had not been mentioned. The draftsman, who had prepared the site plan, had not been examined. The plaintiff had concealed the factum of filing of earlier suit by him for separate possession regarding the suit property, which was got dismissed as withdrawn. The suit of the plaintiff was thus barred under Order 2 Rule 2 of the Civil Procedure Code. The said findings of the trial Court were upheld by the learned Additional District Judge in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 10, 2009 anita