R. S. A. No. 3907 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3907 of 2008 Date of Decision : August 11, 2010 Ram Kumar .... Appellant Vs. Rohtash and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Gorakh Nath, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Ram Kumar – defendant no.1 has filed the instant second appeal. Suit was filed by Rohtash – respondent no.1/plaintiff against appellant as defendant no.1 and against proforma respondents no.2 to 5 as proforma defendants no.2 to 5. Defendants no.1 to 4 had 1/4th share each in 135 kanals 11 marlas land in question. Similarly, defendants no.1 to 4 and Kishan Lal – predecessor of defendant no.5 had 1/5th share each in 22 kanals 04 marlas land in question. Pahlad – proforma defendant no.3 suffered consent decree dated 22.07.1991 of his share in both chunks of land in R. S. A. No. 3907 of 2008 2 favour of the plaintiff. Mutation on the basis of said decree was also sanctioned on 12.06.1994. Defendant no.1 thereafter filed partition application dated 02.01.1995 against defendants no.2 to 5, but without impleading respondent no.1-plaintiff as party thereto. The suit land was partitioned by the Revenue Court. The plaintiff has challenged the said partition alleging that he was not made party to the partition proceedings and therefore, the partition effected without affording opportunity of hearing to plaintiff-respondent no.1, who had already become co-sharer in the suit land, is null and void. The plaintiff sought declaration of his share in the suit land i.e. 1/4th share in 135 kanals 11 marlas land and 1/5th share in 22 kanals 04 marlas land. Defendant no.1 contested the suit and denied that plaintiff is owner in possession of 1/4th share and 1/5th share in the two chunks of land. It was pleaded that final partition has been effected and the same cannot be challenged in civil court. Various other pleas were also raised. Defendants no.2 to 5 remained ex-parte in the trial court as well as in the lower appellate court. Learned Additional Civil Judge (Senior Division), Narnaul, vide judgment and decree dated 17.10.2006 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Narnaul, vide judgment and decree dated 06.06.2008 and thereby, suit filed by the plaintiff has been decreed. Feeling R. S. A. No. 3907 of 2008 3 aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that Pahlad – defendant no.3 was the recorded co-sharer in the suit land in jamabandi and therefore, Pahlad was impleaded as party in the partition proceedings and plaintiff was not impleaded as party in the partition proceedings because plaintiff was not recorded as co-sharer in the suit land in jamabandi and therefore, there is no infirmity in the partition order. I have carefully considered the aforesaid contention, but find myself unable to accept the same. As noticed herein above, mutation no.959 had been sanctioned in favour of plaintiff on 12.06.1994 on the basis of consent decree dated 22.07.1991 and consequently, the plaintiff was recorded to be co-sharer in the suit land. Partition application was filed by defendant no.1 on 02.01.1995 i.e. after mutation had already been sanctioned in favour of the plaintiff on 12.06.1994 depicting him to be co-sharer. Consequently, there was no justification for defendant no.1 for not impleading plaintiff as party in the partition application. In view of mutation, the plaintiff was deemed to be substituted as co-sharer in the place of Pahlad in jamabandi, but the name of plaintiff as co-sharer in jamabandi could be entered only when next jamabandi was to be prepared. However, after sanction of mutation, note in R. S. A. No. 3907 of 2008 4 red ink is recorded in remarks' column of last existing jamabandi to depict that change as per mutation has taken place in the ownership of land in question. Consequently, after sanction of mutation, the person in whose favour the mutation is sanctioned, gets substituted in place of the predecessor. In the instant case, the plaintiff got substituted as co-sharer in the suit land in place of Pahlad on sanction of mutation. There is no explanation on behalf of defendant no.1-appellant as to why in spite of sanction of said mutation, defendant no.1 did not implead the plaintiff as party to the partition application. It is thus manifest that partition order has been passed without affording opportunity of hearing to the plaintiff, who had become co-sharer in the suit land even before the filing of the partition application. Consequently, all partition proceedings including the final partition order stand vitiated and cannot be allowed to stand against the plaintiff. There is, therefore, no illegality in the finding of the lower appellate court to this effect. For the reasons recorded herein above, I find no merit in the instant 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. August 11, 2010 ( L. N. MITTAL ) monika JUDGE