RSA No.1724 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1724 of 2010(O & M) Date of Decision:13.08.2010 Rameshwar & Ors. .... appellants Versus Smt.Lichhimi & ors. .....respondents ***** RSA No.1725 of 2010(O & M) Date of Decision:13.08.2010 Rameshwar & Ors. .... appellants Versus Smt.Lichhimi & 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.Jitender Nara,Advocate for the appellants **** RAKESH KUMAR GARG J. CM No.8333-34-C of 2010 CMs are allowed subject to all just exceptions. The amended memo of appeal is taken on record. CM No.5240-C of 2010 For the reasons mentioned in the application, delay of 61 days in refiling this appeal is condoned. RSA No.1724 of 2010(O & M) 2 CM stands disposed of. RSA No.1724 of 2010(O & M) By way of these appeals, i.e. RSA No.1725 and 1724 of 2010 appellants who were defendants in Civil Suit No.615 of 13.03.2003 and were plaintiffs in Civil Suit No.347 of 31.03.2001 have approached this Court challenging the judgement and decrees of the courts below whereby suit for permanent injunction with alternative relief of possession by way of partition filed by the respondents(Civil Suit No.615 of 13.03.2003) was decreed and Civil Suit No. 347 of 2001 filed by the appellants for permanent injunction was dismissed. Briefly stated, in Civil Suit No.615 of 13.03.2003 the case set up by the respondents is that ancestors of the respondents-plaintiffs and defendants-appellants were joint owners in possession of five residential properties described as A B C and plot No.212 and plot No.301 and the aforesaid properties were partitioned in the year 1962. In the said partition, property No.B and plot No.212 were given to the father of the plaintiff-respondent of Civil Suit No.615 of 2001. Since then, they were coming in possession of property B plot No.212, exclusively. The remaining properties bearing No. A, C and plot No.301 were given to the ancestors of the defendants. The plaintiffs have constructed the house over the portion of plot No.212, whereas in the revenue record, plot No.212 and 301 were still joint. The aforesaid entries in the revenue record were against the law and facts and by taking the benefit of the aforesaid wrong entries, the defendants-appellants were claiming the aforesaid property to be still joint. In the alternative, the plaintiffs pleaded that in case the partition of the plot could not be proved on record, the properties in hand may be partitioned. The plaintiffs made repeated requests to the defendants-appellants to admit their exclusive claim, over the plot No.212 and property No.B but to no effect. In this background, the plaintiffs prayed a decree for declaration RSA No.1724 of 2010(O & M) 3 to the effect that they were exclusively owner in possession of property No.B mentioned in para No.1 of the plaint, plot No.212 mentioned in para No.2 of the plaint and further a decree for injunction restraining the defendants from interfering in their forcible possession over the said property and in the alternative a decree for possession by way of partition. Upon notice, defendants No. 1 to 12 appeared and filed their joint written statements. Defendants No.13 to 26 were proceeded against ex parte. According to defendants No.1 to 12(i.e. appellants) the forefathers of the plaintiffs and defendants were joint owners in possession of five properties as alleged in the plaint. The suit properties described with letters ABC were not joint and in fact only properties A and B of the parties were joint which were partitioned in the year 1962. Property A came to the share of Ranjit and Manohar. Property B came to the share of Hardayal. The plaintiffs had raised a construction over the suit property. Admittedly, the plots No. 212 and 301 were joint in the revenue record. In plot No.212, the share of defendants No. 1 to 12 is ½. Defendants No.1 to 12 have exchanged their share of plot No.301 with the share of Manohar in property A and plot No.212. In the year 1962, only properties A and B were partitioned. Plot No.212 was never partitioned. It was further pleaded that plot No.212 and 301 were still joint. Other pleas were specifically denied and dismissal of the suit was prayed for. From the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiffs are entitled to get the possession of the suit property by way of partition? OPP. 2. Whether the suit of the plaintiffs is not maintainable in the present form? OPD. 3. Whether the plaintiffs have no locus-standi to file the present suit? OPD. RSA No.1724 of 2010(O & M) 4 4. Whether the private partition of the suit property has been effected between the parties in the year 1962? OPD. 5. Relief. Thereafter both the parties were permitted to lead their respective evidence. In the other Civil Suit No. 347 of 31.03.2001 titled as “Rameshwar etc.vs.Hari Ram etc.”, the case set up by the appellant was that in the suit plot No.212, the plaintiffs were in possession of portion EBCF measuring 1K-1M right from the time of consolidation and they were using the same. The defendants have constructed their house over their half share in the portion shown with letters AEFD in the site plan. They wanted to encroach upon the portion shown with letters EBCF by digging foundation. Defendants No. 3 and 4 were in possession of plot No.301 as per their share. They had no share in plot No.212. Plaintiffs repeatedly asked the defendants not to encroach upon their portion shown with letters EBCF but to no effect. The defendants finally refused to budge on 10.03.2001. Hence the suit restraining the defendants from interfering in their possession over the portion shown with letters EBCF which is part of khasra No.212, in which the plaintiffs were having no share. Upon notice, defendants No.1 and 2 appeared and filed their joint written statement. Other defendants were proceeded against ex parte. According to defendants No.1 and 2, the portion shown with letters ABCD is part of khasra No.212 and the plaintiffs had no concern with this plot bearing No.212. The suit plot and other properties within the Lal Dora were partitioned in the year 1962. The house situated within the Lal Dora of plot and claimed land came to the share of Ranjit, father of plaintiff No.1. The suit plot came to the share of Hardayal father of defendants No.1 and 2. Defendants No.3 and 4 have no concern with the suit plot. Defendants No.1 and 2 were in possession of the suit plot being exclusive owners. RSA No.1724 of 2010(O & M) 5 Dismissal of the suit was prayed for. The following issues were framed by the trial Court in the aforesaid case: 1. Whether the plaintiffs are owner in possession of the suit land? OPP. 2. Whether the suit of the plaintiffs is not maintainable in the present form? OPD. 3. Relief. Both the cases were consolidated vide order dated 07.12.2007. Thereafter, following consolidated issues were framed: 1. Whether the suit property marked as 'B' and plot no. 212 were given to the father of the plaintiffs and properties marked as A & C and plot no. 301 were given to the father of the defendants in a family partition held in the year 1962? OPP. 2. If issue no. 1 stands proved, whether the plaintiffs are entitled for the relief of injunction? OPP. 3. If issue no. 1 is not proved, whether the plaintiffs are entitled for partitioned of the suit properties? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the suit property marked with letter 'C' and plot no. 212 and 301 were not partitioned in the year 1962? OPD. 6. Whether the plaintiffs have been estopped to file the present suit by their own act and conduct? OPD. 7. Relief. On appreciation of evidence, the trial Court came to the conclusion that the suit properties detailed in para No.1 and 2 of the plaint RSA No.1724 of 2010(O & M) 6 were partitioned between the parties in the year 1962. In the said partition, properties marked with letter B and plot No.212 were given to the father of the plaintiffs and thereafter plaintiffs were coming in exclusive possession of the properties marked with letter B and plot No.212. Property No.A and C and plot No.301 were given to the father of the defendants and thereafter the defendants were coming in exclusive possession of these properties. Thus the defendants Rameshwar etc. were restrained from interfering in possession of the plaintiff over the property marked as B and plot No.212. Accordingly Civil Suit No.615 of 2003 titled as “Hari Ram etc. vs.Rameshwar etc.was decreed whereas Civil Suit No.341 of 2001 titled as “Rameshwar etc.Hari Ram etc. was dismissed. Appellants filed two Civil appeals No. 37 of 2009 and 38 of 2009 against the aforesaid judgement and decrees of the trial Court which were also dismissed by the Lower Appellate Court. While dismissing the aforesaid appeals, the Lower Appellate Court observed as under: “So far as the question of partition of the joint properties, referred to above of the parties to the suit, is considered, learned trial court categorically held that the above referred all the joint properties of the parties to the suit were partitioned in the year 1962. In that partition, the properties shown by alphabet 'B' and plot No. 212 were given to Hardial the father of plaintiffs Hari Ram and Ishwer. Properties shown by alphabet 'A' and 'C' and plot No. 301 were given to Ranjit the predecessor in interest of defendants Rameshwer etc. These findings of the learned trial Court are based on the statements of PW1, DW1 and DW2. The statements of these witnesses of the parties to the suit qua properties shown by alphabets A.B.C. in para no. 1 of the plaint of civil suit No. 615 of 2003 are though not supported by any documentary evidence, but their statements are sufficient to decide the controversy between RSA No.1724 of 2010(O & M) 7 the parties because these properties are situated within the lal dora of the village. No documentary evidence was available with the parties. The factum of jointness of these properties and partition thereof in the year 1962 is admitted by the parties during the proceedings of the case either in the form of pleadings or in the form of oral evidence deposed before the court. So far as, the remaining two properties i.e. Plots no. 212 and 301 are concerned, these properties were allotted to predecessors of the parties to the suit in the consolidation proceedings. Their revenue record is available. That record is contrary to the oral evidence of the parties, because in that record (Ex. P2, Ex.P3) these properties are still recorded as joint properties of the parties to the suit. Though the presumption of correctness is attached to Ex. P2, which is copy of Jamabandi for the year 1996-97, but this presumption is rebuttable and stood rebutted with the oral statements of the witnesses of the parties. The parties to the suit are villagers and it is a matter of common knowledge that with the expansion of the joint families, the joint properties are partitioned among the co- sharers with mutual consent and according to the convenience of the co-sharers, in the family settlements. Though, the law requires that such family settlements must be brought in the notice of the revenue authorities to be got entered in the revenue record but for want of knowledge of the real procedure and in order to avoid their exploitation from the revenue authorities. The villagers hesitate to go to the revenue authorities to get enter the family settlements in the revenue record. It appears that same thing happened in the present case. The parties failed to get entered the family partition in the revenue record and this is why plots no. 212 and 301 are still recorded as joint property of the parties to the suit, despite the fact that several co-sharers being female have gone to the houses of their in-laws and are residing there. Some of the co-sharers have died long back and their names are still existing in the revenue record. Therefore, in these circumstances, the correctness of Ex.P2 qua jointness of plots No. 212 and 301 cannot be accepted. RSA No.1724 of 2010(O & M) 8 Once it is proved that parties are residing in their separate respective shares since long, I have no reason to differ with the opinion of the learned trial court qua its findings regarding the partition of plots no. 212 and 301 among the co-shares. Thus, learned trial Court rightly ignored sale deed Ex.D3 being not connected with the properties in dispute.” Still not satisfied, the appellant are before this Court by way of present appeals. I have heard learned counsel for the appellants and perused the impugned judgements and decrees of the courts below. The only point before this Court is whether suit properties stood partitioned between the parties in the year 1962 or are still joint. Both the courts below on appreciation of evidence and pleadings have recorded a finding of fact that the properties have already been partitioned between the parties. From the findings given by the Lower Appellate Court as observed above, it cannot be said that the findings are perverse. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 13.08.2010 neenu