RSA No.590 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.590 of 2010(O & M) Date of Decision:14.09.2010 Suresh Kumar Tayal .... appellant Versus Shri Kumar Tayal & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Amit Kumar Goyal,Advocate for the appellant **** RAKESH KUMAR GARG J.(ORAL): This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for separate possession by way of partition of the suit property was decreed and a preliminary decree was passed in his favour. As per the facts noticed by the trial Court, plaintiff- respondent No.1 had sought a decree for separate possession by way of partition of house No.S-484 situated in Naya Bazar, Bhiwani. Appellant, in para No.1 of the written statement, specifically admitted that the suit property is joint property of the parties to the suit. The remaining defendants-respondents No.2 and 3 had admitted the claim of the plaintiff- respondent and had stated that they have no objection in passing the preliminary decree and in this view of the admission of the appellant, the trial Court passed the impugned decree in favour of the plaintiff- respondent. RSA No.590 of 2010(O & M) 2 Appellant preferred an appeal against the aforesaid judgment and decree of the trial Court. Before the Lower Appellate Court, the only ground taken by the appellant to challenge the judgment and decree of the trial Court was that a wrong written statement was filed on his behalf and the appellant also moved an application for amendment in the written statement which was dismissed by the trial court vide order dated 09.09.2005, against which, civil revision was filed, which is pending in the High Court. However, the Lower Appellate Court, after noticing these facts came to the conclusion that no particulars were forthcoming about the aforesaid civil revision and the same was presumed to be dismissed. Consequently, appeal was dismissed. Still not satisfied, defendant No.1 has approached this Court by way of instant appeal before this Court. Even before this Court, learned counsel for the appellant could not give any satisfactory reply regarding the pendency of the revision petition against the order dated 09.09.2005 filed by the appellant dismissing his application for amendment in the written statement. In this view of the matter, the view taken by the Lower Appellate Court, while dismissing the appeal, cannot be said to be erroneous. Order dated 09.09.2005, rejecting the prayer of the appellant for amendment in the written statement has become final and no grievance could have been raised by the appellant on the basis of aforesaid ground. Before this Court, a totally new argument has been raised by the counsel for the appellant that the courts below have not framed the proper issues in the present case and therefore the impugned judgment and decrees are liable to be set aside. It may be noticed that the aforesaid argument is wholly erroneous and is liable to be rejected, at the outset. Neither any such argument regarding the framing of issues was raised by the appellant RSA No.590 of 2010(O & M) 3 before the Lower Appellate Court, nor appellant had moved any application for reframing of issues before the Civil Court during the pendency of the suit. Not only this, a perusal of the judgment and decree of the trial Court would show that the suit was decreed on the basis of specific admission made by the appellant in his written statement that the suit property is joint of the parties. In this view of the matter, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 14.09.2010 neenu