RSA No.1218 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1218 of 2011 (O & M) Date of Decision: 10.03.2011 Shimla and others ……Appellants Versus Janga Ram and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Saurabh Bajaj, Advocate for the appellants. L.N. MITTAL, J (ORAL) Some of the defendants having failed in both the Courts below are in second appeal. Respondent Nos.1 to 6/plaintiffs filed suit for possession of the suit land measuring 257 kanals 3 marlas alleging that joint land measuring 778 kanals 14 marlas was partitioned by revenue Court vide order dated 14.06.1993 and in the said partition, suit land measuring 257 kanals 3 marlas fell to the share of the plaintiffs, but the same is in possession of defendants. Accordingly, plaintiffs sought possession of the suit land. RSA No.1218 of 2011 (O & M) - 2 - Some of the defendants contested the suit and controverted the plaint allegations. It was pleaded that plaintiffs did not file execution petition before revenue Court which partitioned the joint land. Some of the defendants even contested the factum of partition alleging that no instrument of partition has been prepared and finalized. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pehowa vide judgment and decree dated 28.10.2010 decreed the plaintiffs’ suit. First appeal preferred by some of the defendants has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 28.02.2011. Feeling aggrieved, some of the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiffs produced in evidence partition order dated 14.06.1993 passed by the revenue Court. Perusal of the said order as shown by counsel for the appellants reveals that ‘Naksha Jeem’ had already been prepared proposing mode of partition. The said ‘Naksha Jeem’ was sanctioned by the revenue Court vide order dated 14.06.1993 and final partition was effected. It is also mentioned in the said order that Sanad Takseem (instrument of partition) is annexed separately in the case file. According to the partition order, the suit land fell to the share of the plaintiffs. RSA No.1218 of 2011 (O & M) - 3 - Defendants had challenged the said partition order by filing a separate suit, but the said suit was dismissed in default. The partition order has thus become final. Consequently, plaintiffs are entitled to possession of the suit land as rightly found by the Courts below. It may be mentioned that Partapa alias Partap Singh was owner in possession of 778 kanals 14 marlas land in question. He had three sons namely Ram Niwas, Mangal and Sher Singh. They got 1/3rd share each in the aforesaid total land. Plaintiffs are successors of Ram Niwas whereas defendants are successors of Mangal and Sher Singh. Thus plaintiffs had 1/3rd share in the total land measuring 778 kanals 14 marlas. Plaintiffs have been given 257 kanals 3 marlas land in partition i.e less than 1/3rd share of 778 kanals 14 marlas joint land in terms of area. Learned counsel for the appellants vehemently contended that no instrument of partition has been placed on record as also found by the Courts below and consequently there was no final partition. Reliance in support of this contention has been placed on order of Financial Commissioner, Punjab in the case of Kartar Singh and others versus Kapur Singh and others, 1971 PLJ 677 as referred to by this Court in the case of Lal Chand versus Ganga Ram, 2005(1) PLR 782. I have carefully considered the aforesaid contention, but find no merit therein. Partition order dated 14.06.1993 made the RSA No.1218 of 2011 (O & M) - 4 - partition final by accepting ‘Naksha Jeem’. It has also been mentioned in the said order that Sanad Takseem i.e instrument of partition was separately annexed with the file. Moreover, in the case of Lal Chand (supra), appeal in the partition case had been decided subsequent to the decree passed by trial Court in preemption suit and, therefore, it was held that status of cosharer of the plaintiff- preemptor had not come to an end till the decision of the pre-emption suit. In the instant case, there is final order of partition dated 14.06.1993 which remains unchallenged and has attained finality. Suit filed by the defendants to challenge the same in Civil Court already stands dismissed. Consequently, plaintiffs have been rightly granted decree for possession of the suit land which was allotted to them in partition. Learned counsel for the appellants referred to judgment and decree dated 01.10.2010 Annexure A-1 passed in some other suit filed by some of the defendants herein. Plaintiffs herein were defendants in the said suit. However, it cannot be said that the said judgment and decree have attained finality. Learned counsel for the appellants contended that in that case, defendants (who are plaintiffs in the instant suit) pleaded some subsequent compromise effected in the year 2005, but in the said compromise, the suit land was not allotted to the plaintiffs exclusively. However, the said compromise RSA No.1218 of 2011 (O & M) - 5 - referred to by counsel for the appellants was neither pleaded by the defendants nor it is part of the evidence led in the instant suit. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the Courts below in favour of the plaintiffs is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. The said finding, therefore, does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 10.03.2011 A.kaundal