RSA No.2163 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2163 of 2008 Date of Decision:30.03.2009 Balwan & ors. ....appellants Versus Rajbir & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.A.K.Kansal,Advocate for the appellants Mr.Amit Kumar Jain, Advocate for respondent Nos.1 and 2. **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court, whereby judgment and decree of the trial Court has been set aside and suit of the plaintiff-respondents for partition has been decreed. Undisputedly, the parties to this appeal are co-sharers in the suit property. The plea of the plaintiff-respondents before the trial Court was that no partition has taken place between the co-sharers though the co-sharers were in possession under some sort of arrangements. On the contrary, it was the specific plea of the defendant-appellants that a private partition has taken place between the co-sharers about 50 years back. The trial Court dismissed the suit. However, the Lower Appellate Court accepted the appeal and decreed the suit of the plaintiff-respondents. RSA No.2163 of 2008 2 The relevant observation of the Lower Appellate Court are as under: “ It is the case of the plaintiff/appellants that the land in dispute is joint and the same has not been partitioned by meets and bounds whereas respondents No. 1 to 3 claimed that the suit land has already been partitioned about 50 years ago and since then the parties to the suit are in possession of their specific share. Rajbir plaintiff appellant appeared in the witness box as PW1 to depose that the suit land is joint. No doubt in the cross-examination he admitted that Azad Singh has constructed a house in the plot in dispute and he has encroached upon some portion of his share. He has also admitted that he has also filed the present suit for taking possession of the encroached land. When the statement of PW1 Rajbir is read as a whole it can be concluded that the land is joint and all the co-sharers made some arrangement for the use of the same. From the statement of PW1 Rajbir it is not proved that partition took place by meets and bounds. Even no suggestion was given to him by the counsel for the defendant/respondents that this much specific portion with these particular boundaries came to his share in the partition. Respondent/defendant Azad appeared in the witness box as DW1. In the cross- examination he has admitted that in the land in dispute the plaintiffs/appellants have share. Defendants/respondents No.1 to 3 have come with specific plea that partition has taken place but they failed to prove that on partition how much area with what boundaries came to share of each of the parties to the suit. The construction of house by Azad RSA No.2163 of 2008 3 Singh over the land in dispute does not prove the factum of partition as a co-sharer in exclusive possession of share can raise construction and enjoy the property and that raising of construction does not amount to ouster of other co-sharers. That construction is always subject to partition. Where a co-sharer is in possession of separate parcel under arrangement, it is not open to any one to disturb the arrangement without the consent of other except by filing a suit for partition and not for ejectment. Thus, raising no objection by the plaintiff/appellant at the time of construction of house by Azad Singh does not prove that the suit land has been partitioned. As per defendants/respondents oral partition has taken place in brotherhood but no application under Section 123 of Punjab Land Revenue Act has been filed by any of the parties to give effect to private partition. When no such application has been made and the private partition has not been affirmed by the revenue officer, suit land shall remain joint. Copy of jamabandi Ex.P-1 further provides that the suit land is joint. Thus, it is concluded that no partition has taken place by meets and bounds.” Still not satisfied, the defendants have filed this appeal challenging the judgment and decree of the Lower Appellate Court. I have heard learned counsel for the parties. The question in this appeal whether partition has taken place or not is essentially a question of fact. The defendants had taken a specific plea that private partition has taken place about 50 years back, however, there is no evidence placed on record by the appellants to prove the aforesaid assertion. The oral partition as alleged is not reflected in the revenue record. Rather, revenue record shows the suit land joint. Thus, there is no RSA No.2163 of 2008 4 evidence on record to support the plea of defendant-appellants. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 30.03.2009 neenu