RSA No.284 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.:3600-C of 2008 RSA No.284 of 2008 (O&M) Decided on :26.11.2009 Niranjan Singh & others ... Appellants versus Smt. Ajmer Kaur & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. P.N.Aggarwal, Advocate for the appellants. Mr. R.N.Moudgil, Advocate for the respondent No.1. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the plaintiff- respondent for possession by way of partition. Both the Courts below relied on an earlier suit which had been filed by the respondent against the appellants. In that suit the relationship between the parties had been admitted and it had been admitted that the property in dispute had come from the common ancestor. The following questions have been proposed: i) Whether the impugned judgments and decrees of the courts below are not vitiated as the pleadings of RSA No.284 of 2008 (O&M) -2- the parties and the evidence on the record have been ignored as well as misread and misinterpreted? ii)Whether the suit out of which the present appeal arises was not liable to be dismissed on the ground that Baldev Singh, the alleged Special Attorney of Smt. Ajmer Kaur, had no power or authority to file the present suit on behalf of Smt. Ajmer Kaur on the basis of the six years old Special Power of Attorney dt. 21.09.1993 Ex.P-2 which was meant for the appearance of Baldev Singh as a Special Attorney of Smt. Ajmer Kaur, in another then pending suit regarding another property situated in Kharar, Distt. Ropar and not relating to properties Nos.1 to 4 in question situated in village Khanpur involved in the present case? iii)Whether the impugned judgment and decrees of the courts below are not vitiated as all the proper and necessary issues arising out of the pleadings of the parties have not been framed? iv)Whether a strong presumption should have been raised against Smt. Ajmer Kaur, the plaintiff- respondent No.1, as she did not put in appearance to depose in the witness box and instead got her alleged Special Attorney appear? v)Whether the recitals in a judgment of a previous suit are per se admissible as evidence in the subsequent RSA No.284 of 2008 (O&M) -3- suit in question? vi)Whether any admission by a party in a previous suit can be relied upon without having been proved in the suit in question, without confronting those recitals and admissions to the party concerned when it appears in witness box in the subsequent suit? vii)Whether the courts below have not acted illegally and with material irregularity in not considering and dealing with all the submissions made before them on behalf of the defendants-appellants? viii)Whether the courts below have not illegally decreed the suit of Smt. Ajmer Kaur, plaintiff- respondent No.1, when there is no cogent and reliable evidence on the record to establish that the suit properties were ever owned and held by Tulsa Singh and after his death she had one third share in the suit properties and she had a right to get the suit properties partitioned? The only question which has been argued is question No.(vi). In my opinion, it is not only on the basis of admission that the present suit would have been decreed rather once the appellants had accepted the relationship in the earlier suit, they would be barred from taking an inconsistent stand even under the provisions of Order 2 Rule 2. Once it has to be upheld that the respondent was the only child of Sawan Singh, who RSA No.284 of 2008 (O&M) -4- admittedly was one of three sons of Tulsa Singh; her share in the property left behind by Tulsa Singh cannot be denied. Consequently, holding the question argued by the learned counsel against the appellant, this appeal and application for stay are dismissed. Since the main case has been decided, all the pending civil miscellaneous applications if any, stand disposed of. November 26, 2009 (AJAY TEWARI) sonia JUDGE