RSA No.4129 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.4129 of 2009 DATE OF DECISION: 27 th APRIL, 2011 Rajinder Singh & another .... Appellants Versus Joginder Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. K. S. Rekhi, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) CM No.12556 -C of 2009: Allowed as prayed for. Main Appeal: Plaintiff No.1 Rajinder Singh and one of the legal representatives of plaintiff No.2 – Chattar Singh since deceased, having failed in both the courts below, have filed the instant second appeal. In the suit, plaintiffs challenged partition order dated 21.03.1986 passed by revenue court for partition of the suit land measuring 9 Kanals 13 Marlas comprised of Khasra No.141, primarily on two grounds i.e. revenue court had no jurisdiction to partition the suit land being part of Abadi Deh and also on the ground that mutual partition had already taken place. Defendants contested the suit and broadly denied the plaint averments. RSA No.4129 of 2009 -2- Learned Civil Judge (Junior Division), Amritsar vide judgment and decree dated 24.12.2004 dismissed the suit. First appeal preferred by plaintiff No.1 and one of the legal representatives of plaintiff No.2 has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 15.06.2009. Feeling aggrieved, plaintiff No.1 and one of the legal representatives of plaintiff No.2 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that mutual partition of the suit land had already taken place among the co-sharers. The contention cannot be accepted. Plaintiffs have not even mentioned the date, month or year of the alleged mutual partition in the plaint or in evidence. Moreover, revenue record still depicts the suit land to be joint land of the parties and the alleged mutual partition has not been incorporated in the revenue record. In addition to it, partition order of revenue court cannot be challenged on this ground in Civil Court. Furthermore, Balwant Singh PW-1, Gurdial Singh PW- 2 (one of the legal representatives of plaintiff No.2) and Rajinder Singh PW-3 (plaintiff No.1) admitted in their cross-examination that the disputed property is joint property of all co-sharers. No plea of mutual partition was either raised in the revenue court by the plaintiffs or their predecessors. In view of all these reasons, there is no escape from the conclusion that there was no mutual partition of the property. Concurrent finding to this effect recorded by the courts below is, therefore, fully justified by the evidence on record and the said finding does not warrant interference in second appeal. Learned counsel for the appellants next contended that suit RSA No.4129 of 2009 -3- property is residential property and not agricultural land and therefore, revenue court had no jurisdiction to partition the same. The contention although apparently attractive, cannot be accepted. On pointed enquiry, learned counsel for the appellants conceded that plaintiffs have specifically not pleaded that suit property is residential property and is not agricultural land. In view thereof, the aforesaid contention cannot be accepted. Even otherwise, revenue record does not depict that suit land is not agricultural land. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below to non-suit the plaintiffs does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 27th April, 2011 'raj'