IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 279 of 2009. Decided on: 15.3.2010. __________________________________________________ Shri Kushal Singh and another. … Appellants. Versus Smt. Mohan Kumari and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. R.R. Rahi, Advocate. For Respondents No.1 to 3 : Mr. Sanjeev Kuthiala, Advocate. ___________________________________________________________ V.K. Sharma, Judge (Oral). A piece of land measuring 0-05-99 hectares denoted by survey numbers, that is, Khewat No. 73, Khatauni No. 116, Khasra Nos. 640, 1802, 1803, 1811 and 1812, plots 5, which is recorded in the joint ownership and possession of the plaintiff, Shri Chain Singh to the extent of 10 shares and defendants Shri Kushal Singh and Shri Raj Kumar to the extent of one share each, is the subject-matter of the dispute between the parties. The suit was filed by the plaintiff for partition on the averments that the suit property being joint is required to be partitioned so as to enable the respective co-sharers to enjoy the usufruct of their shares as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 absolute owners. The defendants, who had purchased a part of the aforesaid land to the extent of 7 marlas or say 0-00-98 hectares approximately from the plaintiff had, in essence, become co-owners with the plaintiff and by necessary implication in joint possession of the suit land. The prayer on behalf of the plaintiff for grant of preliminary decree for partition found favour with the learned trial Court. The challenge to such findings on behalf of the defendants before the learned First Appellate Court, the Additional District Judge, Una, H.P., was unsuccessful. Now, by way of present regular second appeal, the defendants are seeking indulgence of this Court to undo what has been done by both the Courts below concurrently, on the following substantial questions of law as formulated at page 9 of the Paper Book: 1. Whether the judgment & decree passed by both the learned Courts below suffer from material illegality and irregularity and against the facts and evidence on record is liable to be quashed and set aside? 2. Whether the judgment of the Court below is sustainable in law due to non- joinder of necessary parties to the suit? 3. Whether the suit can be proceeded further when the plaintiff Chain Singh has cancelled the Power of Attorney 3 given to Naginder Singh and does not want to continue with the suit? 4. Whether the finding on issue No.4 is sustainable especially when the plaintiff does not appear in the witness box and on oath not denied the claim of adverse possession of the defendants? 5. Whether the statements of PW3, PW4 & PW5 can be ignored and plea of adverse possession be ignored in the absence of any rebuttal by the plaintiff by not stepping into a witness box? 6. Whether a decree for possession can be granted without affixing court fees for the relief of possession? Though as many as six questions of law have been formulated, yet during the course of hearing on the point of admission, learned counsel for the defendants has restricted the submissions only to questions No. 4 & 5 relating to the plea of adverse possession raised on behalf of the defendants before the learned Courts below. In this regard, suffice it to say that the plea of adverse possession is a mixed question of fact and law. On the point of fact, as already observed, there are concurrent findings of both the Courts below. In so far as the law point is concerned, plea of adverse possession by a co-owner/co-sharer would, to my mind, not succeed unless specific pleadings as to ouster are set up and proved on record. However, neither any plea was raised 4 in the written statement nor there is any due proof as to at what point of time the defendants, who admittedly acquired title to a portion of the suit land by way of purchase from the plaintiff, came to be in possession of the entire suit land to the detriment of the plaintiff and thus, adversely possessing the same to the exclusion of the plaintiff, what to say of ouster. In view of the above, I am afraid that what to say of any substantial question of law not even a question of law is involved in the present appeal. Even otherwise, taking into consideration the very nature of the proceedings involved in the present appeal, it would be pertinent to notice that at this stage only a preliminary decree for partition has been passed in favour of the plaintiff. The matter is again to go to the learned trial Court for passing of final decree and only when such decree is passed the same shall be executable on the spot. Even at that time, the final partition is required to be effected on the spot taking into consideration the respective possession of the parties in accordance with law and particularly the provisions of The Partition Act, 1893. 5 In view of the above, the appeal being without any merit is accordingly dismissed. However, the parties are left to bear their own costs throughout. The records of the learned Courts below be returned. In view of the disposal of the main appeal, pending application, if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge. March 15, 2010. (cr)