R.S.A.No. 1657 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1657 of 2010 (O&M) Date of decision: 27.1.2011 Ujjagar Singh ......Appellant Versus Ramesh Kumar and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Parminder Singh, Advocate, for the appellant. Mr.Bhag Singh, Advocate for respondent No.1. Mr.Inderjit Sharma, Advocate, for respondent No.2. **** SABINA, J. Plaintiff had filed a suit for possession by way of partition . The case of the plaintiff, in brief, was that the plaintiff and defendants were owners in possession of the suit property to the extent of 1/3rd share each. The property in question was purchased R.S.A.No. 1657 of 2010 (O&M) 2 by all the three brothers jointly to the extent of 1/3rd share each vide sale deed dated 1.2.972. The mutation was sanctioned in favour of the purchasers. Defendant No.1 started raising construction over some portion of the land in question whereupon the plaintiff had filed a civil suit for permanent injunction. Defendant No.1 now threatened to raise construction over the property in dispute with a view to oust the plaintiff from the suit property. Hence, the suit was filed by the plaintiff for possession of the suit property qua his share by way of partition. Defendant No.1, in his written statement, averred that a family settlement was arrived at between the parties and in the said settlement, the suit property had come to his share . The room and boundary wall had been constructed by him out of his own funds. Suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. Defendant No.2, in his written statement, averred that the suit property had been purchased by him out of his own funds. He had purchased the suit property in the name of his brothers and plaintiff and defendant No.1 were minors at that time. Plaintiff had relinquished his share in the suit property. Plaintiff had never contributed towards the construction raised at the spot. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to possession by way R.S.A.No. 1657 of 2010 (O&M) 3 of partition on the ground taken in the plaint? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4. Whether the suit is barred by limitation? OPD 5.Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 7.2.2009. A preliminary decree for partition of the suit property by metes and bounds was passed in favour of the plaintiff and it was declared that the parties were entitled to separate possession of 1/3rd share each in the suit property. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal and the same was dismissed vide judgment and decree dated 28.1.2010 passed by Additional District Judge, Ambala. Hence, the present appeal by defendant No.1. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, the property in dispute was purchased by the parties vide sale deed Ex.P-2. The case of the appellant was that the suit property had come to his share in a family settlement. The property situated in abadi of the village had come to the share of the plaintiff and defendant No.2. However, the appellant failed to prove on record any document qua the alleged family settlement. The R.S.A.No. 1657 of 2010 (O&M) 4 appellant also failed to establish that the plaintiff and defendant No.2 had got some other property in the family settlement situated in abadi of the village. The appellant at one instance had tried to raise construction over the property in dispute and plaintiff had filed a suit for permanent injunction. In the said suit, appellant had made a statement that he would not raise construction beyond his 1/3rd share. In these circumstances, the Courts below rightly drew the inference that all the parties had 1/3rd share each in the suit property. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 27, 2011 anita