RSA No.2485 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2485 of 2011(O&M) Date of Decision: July 12, 2011 Gurpreet Singh .....Appellant v. Kartar Singh .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.NPS Mann, Advocate for the appellant. ...... RAM CHAND GUPTA, J.(Oral) C.M.No.6801-C of 2011 For the reasons recorded in the application, delay of 61 days in filing the appeal is condoned. C.M.No.6799-C of 2011 For the reasons recorded in the application, delay of 31 days in refiling the appeal is condoned. C.M.No.6800-C of 2011 Application is allowed subject to all just exceptions. RSA No.2485 of 2011 Present regular second appeal has been filed against judgment and decree dated 12.10.2010 passed by learned Additional District Judge, SAS Nagar (Mohali), allowing appeal filed by the respondent-defendant against judgment and decree dated 1.4.2009, passed by the then learned Additional Civil Judge, Senior Division, Mohali, and thereby dismissing the suit filed by present appellant-plaintiff. I have heard learned counsel for the appellant-plaintiff and RSA No.2485 of 2011(O&M) -2- have gone through the whole record carefully, including the judgments passed by both the Courts below. Admitted facts are that earlier fathers of present appellant and respondent-defendant were joint owners in possession of the property including the property in dispute being real brothers. Even in jamabandi Ex.P1, they are shown to be joint owners of the property. There is also no dispute that Gurdial Singh transferred his share in the property in question in favour of his son Gurpreet Singh, i.e., present appellant. The present suit has been filed for declaration that the present appellant is owner to the extent of 3/4th share in the property in dispute whereas respondent is owner in possession of only 1/4th share and, however, he intends to raise construction over more than his share. Defendant-respondent has taken the plea that though the property was joint, however, the same was partitioned between him and his brother Gurdial Singh, i.e., father of present appellant vide memorandum of partition dated 19.1.1971, Ex.D1. He has also taken the plea that later on another memorandum of partition was executed between both the brothers dated 7.6.1997, Ex.D2. As per those partition deeds, the property in dispute had fallen to the share of defendant-respondent. Learned trial Court decreed the suit filed by present appellant-plaintiff on the basis of revenue entries. It has been contended by learned counsel for the appellant that presumption of truth is attached to the entries in the revenue record and hence, learned first appellate Court has committed illegality in ignoring the entries made in the revenue record in the jamabandi showing both the parties as co-owners in possession of the property in dispute and showing respondent-defendant in possession of only 1/4th share. RSA No.2485 of 2011(O&M) -3- However, law is well settled that though presumption of truth is attached to the entries in the revenue record, however, the same is rebuttable. In this case respondent-defendant has set up partition between both the brothers and for that he has placed reliance upon two partition deeds, Ex.D1 and Ex.D2. He has taken the plea that the partition was entered orally and, however, later on the same was reduced into writing. Learned first appellate Court has discussed both the partition deeds, Exs.D1 and D2 and came to the conclusion that learned trial Court has committed illegality in ignoring the said partition deeds merely on the ground that the entry was not made in the revenue record. Exs.D1 and D2 bear signatures of Gurdial Singh, father of appellant-plaintiff. Appellant-plaintiff has admitted signatures of his father on both the said memos. Father of appellant-plaintiff did not appear in the witness box to deny execution of Exs.D1 and D2. Hence, learned first appellate Court has rightly come to the conclusion that Ex.D1 and Ex.D2 were executed between the parties. It has been contended by learned counsel for the appellant that the documents Exs.D1 and D2 cannot be read into evidence as the same are unregistered. However, the said objection has been duly discussed by learned first appellate Court. It was his case that initially oral partition had taken place between both the brothers and later on the said fact was incorporated in Exs.D1 and D2. Hence, it cannot be said that partition was effected at the first time vide Exs.D1 and D2, rather the same had already taken place orally and the factum of that partition was incorporated in Exs.D1 and D2 and hence, in view of these facts, it cannot be said that Exs.D1 and D2 cannot be read into evidence as the same are unregistered one. Learned first appellate Court has duly discussed the evidence, while RSA No.2485 of 2011(O&M) -4- coming to the conclusion, that the property in question had fallen to the share of the respondent-defendant, which is situated in between property of Ishar Singh and Jawala Singh and now owned by Sardara. The partition was duly acted upon. There is also admission by present appellant-plaintiff that respondent-defendant is in exclusive possession of the baras in question since long and he has constructed a house over one of the baras since long. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned first appellate Court in passing the impugned judgment and decree. Finding recorded by the lower appellate Court is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 12.7.2011 (Ram Chand Gupta) meenu Judge