R.S.A. No. 3332 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3332 of 2008 (O&M) Date of decision: December 22 ,2008 Smt. Gayatri Devi and others ..Appellants v. Samunder Singh and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R.K. Dahiya, Advocate for the appellants. Mr. S. R. Hooda, Advocate for the caveators-respondents. .. Rajesh Bindal J. The plaintiffs are in second appeal before this Court against the concurrent finding of fact by both the courts below, whereby the suit filed by them for permanent injunction restraining the defendants from raising construction on the plot in question was dismissed. Briefly, the facts are that the appellants-plaintiffs filed a suit claiming themselves to be the co-owners of plot measuring 4 kanals 7 marlas, situated in the area of Village Firozpur Bangar, Tehsil and District Sonepat along with the respondents-defendants. It was claimed that they are entitled to 1/4th share therein, whereas the respondents-defendants were owners to the extent of 3/4th share. The plot was being used by the appellants for their domestic purposes, like preparing cow dung cakes, placing firewood etc. The suit came to be filed for the reason that the respondents-defendants wanted to raise construction on the plot forcibly without formal partition thereof. Both the courts below did not find merit in the contentions raised by the appellants-plaintiffs, rather, it was found that the plot in question had, in fact, been partitioned way back in the year 1992 vide family settlement dated 15.3.1992, vide which the appellants-plaintiffs were held entitled to 1/3rd share in the plot. The area was also demarcated and since then the parties were in their respective possession of the shares. Learned counsel for the appellants-plaintiffs submitted that the family settlement dated 15.3.1992 (Ex. D1) could not be proved by the respondents-defendants and unless the family settlement is proved, it could not be held that the plot in question had been formally partitioned in meets and bounds R.S.A. No. 3332 of 2008 [2] and the owners thereof would remain as such. The claim of the appellants- plaintiffs was that till the plot is partitioned amongst its co-owners, none should be allowed to raise construction thereon. However, it was admitted that the estate of Sher Singh, grand father of husband of appellant No.1, had been partitioned amongst his legal heirs and it was only this plot which remained to be partitioned. Otherwise, for agricultural land and other properties, the parties were in their respective possession after the same was formally partitioned. Learned counsel for the caveators- respondents submitted that the suit came to be filed on account of misconception or greed. The property in question had, in fact, been partitioned and the family settlement dated 15.3.1992 (Ex. D1) had been proved on record by the signatories thereto as well as the Deed Writer. The witnesses could not be produced for the simple reason that admittedly both of them had died. In fact, all the parties were in their respective possession of share of plot and there was no dispute as such. Rajesh Kumar, appellant No.3, who was signatory to the family settlement, did not even appear in the witness box to deny the fact that he had not signed the partition deed on account of which adverse inference is to be drawn against the appellants, as he was the only male member in the family after the death of his father and he could very well look after the interest of joint Hindu family property. Having heard learned counsel for the parties, I do not find any merit in the appeal. It is not in dispute, as was even admitted by appellant No.1 in her cross-examination, that the agricultural land had been partitioned amongst the right holders about 10 years prior to the recording of her statement. Further, this was even admitted that Haveli and house owned by the family had also been partitioned and on which respective parties have raised their construction. Two more plots, owned by the family, located at different places had also been allotted to other co- sharers. Under these circumstances, in my opinion, the court was not wrong in forming an opinion that there was no good reason only for this plot to have not been partitioned, as was sought to be claimed by the appellants, when for the last more than 10 years, the parties were enjoying their respective possession on the agricultural land and other properties. The fact that even this plot had been partitioned is evident from document (Ex. D1) dated 15.3.1992, family settlement between the parties, which is duly signed by appellant No.3- Rajesh Kumar. He did not even step into the witness box to deny his signatures thereon. The scribe of the family settlement, namely, DW1-Begh Raj had been produced as a witness. Not only this, all other signatories to the document had admitted the factum of partition. It is only that a plea was sought to be raised that no family settlement R.S.A. No. 3332 of 2008 [3] was entered into. In the suit filed, the appellants-plaintiffs were claiming share to the extent of 1/4th, whereas in terms of the family settlement they have been granted share according to their entitlement, i.e., 1/3rd. The other two witnesses to the document could not be produced for the reason that admittedly both of them had expired. The new plea raised by the appellants before the learned lower appellate court regarding non-framing of relevant issues was also found to be misconceived, as nothing could be pointed out in support thereof. It could not be highlighted as to which of the issues raised by the appellants-plaintiffs had not been framed and what steps were taken at the appropriate time. The findings recorded by the learned court below are plain and simple findings of fact, recorded on correct appreciation of evidence produced on record by the parties, which do not call for any interference by this Court, as the same cannot be said to be perverse. No substantial question of law arises. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge December 22 ,2008 mk