RSA No. 3437 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3437 of 2009 Date of Decision: 13.10.09 Kanta Devi wife of Pawan Kumar, resident of village Katwara, Tehsil Balachaur, District Nawanshahr. ... Appellant Versus 1. Gurbachan Chand, son of Bhagat Ram @ Bhagtu, resident of village Katwara, Tehsil Balachaur, District Nawanshahr. 2. Nasib Chand son of Bhagat Ram @ Bhagtu, resident of village Katwara, Tehsil Balachaur, District Nawanshahr. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vivek Sharma, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 01.06.09, rendered by the Court of Additional District Judge Nawanshahr, vide which, it accepted the appeal, against the judgment and decree, dated 19.10.07, rendered by the Court of Additional Civil Judge (Senior Division), Nawanshahr, and decreed the suit of the plaintiff. 2. Gurbachan Chand, plaintiff, claimed himself to be the co- owner in possession of the land, measuring 1 kanal 17 marlas, to the RSA No. 3437 of 2009 2 extent of half share, comprising khewat No. 13, khatoni No. 15, khasra No. 104 (0-12), 169/2 (0-12), 170/1 (0-13), as per jamabandi, for the year 1999-2000, situated within the abadi area of village Katwara. It was stated that the remaining half portion of the land, in dispute, was the share of the defendants. It was further stated that the land, in dispute, had not been partitioned. It was further stated that, on 14.03.06, the defendants, in connivance with the other persons, encroached upon the entire property, in dispute, and threatened to dispossess the plaintiff, therefrom. The defendants, were many a time, asked to desist from their nefarious designs, but to no avail. Ultimately, a suit for separate possession, by way of parititon, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that the property, in dispute, was owned by the plaintiff and defendant No. 1, to the extent of half share each. It was further stated that, defendant No. 1, constructed a room and kitchen, on the western portion of the land, in dispute, behind the house of Mehar Chand. However, on 26.01.04, the land, in dispute, was partitioned, between the plaintiff, and defendant No. 1, with mutual consent. It was further stated that the western portion of the land, measuring 21 marlas, shown in yellow colour, marked by letters ABEFG, in the site plan, fell to the share of the plaintiff, whereas, the eastern portion of the land, measuring 16 marlas, shown in green colour, fell to share of defendant. No. 1. It was further stated that the difference of 5 marlas, was RSA No. 3437 of 2009 3 adjusted, in the area, situated outside the abadi. It was further stated that, thereafter, defendant No. 1, sold his share, in favour of defendant No. 2, vide sale deed dated 16.11.05, wherein, the latter constructed a house. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether plaintiff is entitled for separation of his share by way of partition of suit property? OPP (ii) Whether the suit is not maintainable in the present form? OPD (iii) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD (iv) Whether plaintiff has not approached the Court with clean hands? OPD (v) Whether this Court has no jurisidiction to hear and try the suit? OPD (vi) Whether the site plan of plaintiff is wrong and against facts and spot? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/respondent, which was accepted, by the Court of Additional District Judge, Nawanshahr, vide judgment and decree dated 11.06.09. RSA No. 3437 of 2009 4 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendant/appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant, submitted that the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that the property, in dispute, had not already been partitioned, by metes and bounds. He further submitted that, from the evidence, on record, it was proved, that the property, in dispute, had already been partitioned, between the co-sharers, and they were in possession of the respective portions, which fell to their share. He further submitted that, even the co-shares, had raised construction. He further submitted that the trial Court, was right, in coming to the conclusion, that the partition, had already taken place, and, as such, the suit, was not maintainable. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting RSA No. 3437 of 2009 5 the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. D1, a document, was pressed, into service, by the defendant/appellant, to show, that the property, in dispute, had already been partitioned. However, it is evident, from the judgement of the first Appellate Court, that this alleged partition, was not implemented, in the revenue record. Even, no mutation, on the basis of the alleged partition, effected by D1, was sanctioned. Not only this, even D1, the document, evidencing the partition, was not got registered. The first Appellate Court, was, thus, right in holding that this document, was not admissible into evidence. The mere fact that, by mutual consent, the co-shares, were living, in separate portions of the property, did not amount to effecting the partition, by metes and bounds. 11. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The RSA No. 3437 of 2009 6 judgment and decree of the first Appellate Court, are, liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 13.10.2009 (SHAM SUNDER) Amodh JUDGE