IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4708 of 2011 (O&M) Date of decision: December 06, 2011 Ishwar Singh .. Appellant Vs. Naresh .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashwani K. Antil, Advocate for the appellant. A.N. Jindal, J The trial court vide judgment dated 10.1.2011, dismissed the suit of the plaintiff- appellant for possession by way of partition and permanent injunction which was appealed against and the appellate court vide judgment dated 25.7.2011 declined to interfere. Hence this regular second appeal. In nutshell, the plaintiff had pleaded that earlier forefathers of the plaintiff were the owners in possession of the plot bearing No.27 and 109 which were allotted to them in the year 1948 through the judgment dated 18/19.4.1948 passed in civil suit No.107 titled as Mam Chand etc. vs. Roop Chand. Phoolu had two sons namely Jug Lal and Ram Gopal. A partition had taken place between them wherein out of plot bearing No.109, measuring 537 square yards, an area of 315 square yards had fallen to the share of Jug Lal (father of the parties). On the death of Jug Lal, the plaintiff and the defendant started residing together in the said plot received by them at the time of partition whereas some un-constructed portion out of the plot No. 109 and plot No. 27 fell to the share of Ram Gopal. It was further alleged that plaintiff is presently residing at Najafgarh and while taking undue advantage of this fact, the defendant is bent upon to grab the shareof the plaintiff. The plaintiff further averred that since there was no written partition, therefore, the defendant wanted to alienate the property. Thus, the plaintiff had claimed possession of ½ share by way of partition of the property bearing Plot No. 109. R.S.A. No. 4708 of 2011 (O&M) -2- *** It was submitted by the defendant in his written statement that there were two plots bearing No.27 measuring 97 square yards and plot No.109 measuring 537 square yards which were allotted to the grand father of the plaintiff and the defendant. Phool Singh had two sons namely Jug Lal and Ram Gopal. Jug Lal is the father of the plaintiff and the defendant. Phool Singh during his life time had divided the entire property in between Jug Lal and Ram Gopal. In the said partition, Jug Lal had received the house constructed on plot No.27 and area measuring 317 square yards out of 537 quare yards from plot No.109. The area measuring 220 square yards out of the plot No.109 and an ancestral land situated in abadi deh of village Rohana had fallen to the share of Ram Gopal, uncle of the plaintiff and the defendant. It was further averred that during his life time, Jug Lal father of the plaintiff and the defendant No.1 had also divided his entire property. The land measuring 317 square yards falling in plot No.109 was given to the defendant whereas double storey house constructed on plot No.27, was given to the plaintiff in the year 1990 which he had already sold to Krishan and he himself had permanently shifted to Najafgarh. Now in order to nullify the earlier partition, the plaintiff has filed the present suit. The variance in the pleadings invited, the trial court to frame the following issues :- 1. Whether the plaintiff is entitled for possession by way of partition on the grounds mentioned in the plaint?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiff has no cause of action to file the present suit?OPD 4. Whether the plaintiff has concealed true and material facts from the court?OPD 5. Relief. Both the parties led evidence. Both the courts did not agree with the pleas set up by the plaintiff. R.S.A. No. 4708 of 2011 (O&M) -3- *** Heard, there is no dispute with the fact that there were two plots, one bearing no.27 and the other bearing No.109. Out of the area measuring 537 square yards of plot bearing No.109, 220 square yards had fallen to the share of his uncle Ram Gopal and the remaining area measuring 317 square yards and plot No.27 had fallen to the share of his father Jug Lal. The defendant has set up a plea with regard to private partition which appeared to have been admitted by the plaintiff Ishwar Singh. Ishwar Singh while appearing in the witness box, during his cross examination, has admitted that his father Jug Lal had divided the property between the two brothers. PW -2 Dhara son of Gopal alias Ram Gopal, who is cousin of the plaintiff has re-iterated the assertions made by Ishwar Singh that only 317 square yards out of the plot No.109 had fallen to the share of Jug Lal father of the plaintiff and the defendant along with plot No.27 on which a double storey building was existing (which was later on sold by the plaintiff) whereas, Ram Gopal had received 220 square yards plot. He has further admitted that the defendant had constructed the house over the said plot after retiring from the army. Similarly, DW-1 to DW-3 namely Dhanpati, Murti Devi and Roshni respectively, also state that father of the plaintiff and the defendant had partitioned the houses during his life time and they are in possession of the same accordingly. The fact that the plaintiff had already sold the house allotted to him at the time of partition also further supports the plea set up by the defendant. No question of law much less substantial question of law arises in this case for determination. No grounds to interfere. Dismissed in limine. December 06, 2011 (A.N. Jindal) deepak Judge