RSA No.3958 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3958 of 2010 Date of Decision: 08.10.2010. Kuljinder Singh Mann and others .....Appellants Versus Attar Singh and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Kuldip Sanwal, Advocate for the appellants. L. N. MITTAL, J (ORAL) Legal representatives of Gian Singh plaintiff have filed the instant second appeal. Plaintiff filed suit for separate possession of half share of the suit property by partition alleging that Devi Dayal was owner in possession of the suit plot. He mortgaged it with possession with Lakhu Ram father of plaintiff and defendant No.1. Mortgage deed was also executed. Lakhu Ram remained in possession of the plot as mortgagee till his death in the year 1970. The mortgage was never redeemed by Devi Dayal mortgagor. Accordingly, Lakhu Ram became owner of the suit property by efflux of time. After his death, plaintiff and defendant No.1 being his heirs became owners in possession of the suit property in equal shares i.e half share each. The suit property was never partitioned. However, defendant No.1 has sold the entire suit property to defendant No.2. Defendant No.1 had no right to do so. Accordingly, plaintiff filed suit for partition of the suit property. RSA No.3958 of 2010 -2- Defendants filed separate written statements. They raised various preliminary objections. On merits, defendants denied the plaint allegations. It was denied that suit property was jointly owned by plaintiff and defendant No.1. It was pleaded that defendant No.1 was exclusive owner in possession of the suit property and he has sold the same to defendant No.2 for valuable consideration. Defendant No.2 is bona fide purchaser of the suit property. Learned Civil Judge (Junior Division), Gurdaspur vide judgment and decree dated 28.11.2001 decreed the plaintiff's suit and passed preliminary decree of partition. However, first appeal preferred by the defendants has been allowed by learned Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur vide judgment and decree dated 27.07.2010 and thereby the suit filed by plaintiff stands dismissed. Feeling aggrieved, legal representatives of the plaintiff have filed this second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that in previous suit for injunction filed by the plaintiff-Gian Singh, it was held that plaintiff is co-sharer in the suit plot to the extent of half share, but he was not in exclusive possession thereof and, therefore, suit for injunction was dismissed. It was contended on the basis of said judgment that plaintiff is owner of half share of the suit plot. The contention, although apparently attractive, is completely devoid of merit. Since the said previous suit filed by Gian Singh plaintiff was dismissed, finding regarding his ownership over the suit plot to the RSA No.3958 of 2010 -3- extent of half share carries no value. Even otherwise, in injunction suit, issue of ownership was not required to be determined. Moreover defendants had no opportunity to file appeal against the said finding since the suit dismissed. Consequently, the aforesaid contention cannot be accepted. It has to be noticed that even according to plaintiff's own version, Lakhu Ram predecessor of plaintiff and defendant No.1 was only mortgagee of the suit property. In view of judgment of Full Bench of this Court in the case of Ram Kishan and others versus Sheo Ram and others, 2008 (1) PLR 1, it cannot be said that Lakhu Ram or his heirs plaintiff and defendant No.1 became owners of the suit plot by efflux of time on account non-redemption of the mortgage. In addition to it, mortgagor or his heirs have not been made party to the suit and in their absence, the plaintiff and defendant No.1 or their predecessor could not be declared to have become owners of the suit property by efflux of time on account of non-redemption of the mortgage. At best, the plaintiff and defendant No.1 could be said to be co-mortgagees, even if plaintiff's version is taken at face value. Consequently, the plaintiff could not seek partition of the mortgaged property as the plaintiff is not owner or co- sharer therein. For the reasons aforesaid, plaintiff's suit for partition cannot be decreed. There is no merit in the instant second appeal, although for different reasons. The appeal is accordingly dismissed in limine. 07.10.2010. ( L. N. MITTAL ) A. Kaundal JUDGE