Regular Second Appeal No.2424 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-8.7.2010 Ranjit Singh and others ...Appellants Versus Jagdev Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Tribhawan Singla, Advocate for the appellants. M ehinder S ingh S ullar , J. (Oral) The challenge in this appeal, filed by Ranjit Singh, Harjit Singh and Gurjit Singh, appellant-plaintiffs (hereinafter to be referred as “plaintiffs”) is to the judgment and decree dated 2.9.2006, whereby, the trial Court has dismissed their suit for partition and the judgment and decree dated 30.11.2009, vide which, their appeal was dismissed as well by the Ist Appellate Court. 2. As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, for facilitation, the bare minimum facts, that need a necessary mention for deciding the present regular second appeal, are that originally, the plaintiffs filed the present suit against Jagdev Singh and 242 others respondent-defendants (hereinafter to be referred as “the defendants”) for a decree of partition and possession to the extent of 1/6th share in the land measuring 55 Bighas 2 Biswas, situated in the abadi and revenue estate of village Dhuri, with a consequential relief of permanent injunction, restraining the defendant Nos.1 to 9 from alienating, in any manner and from raising any sort of construction over the suit property. 3. The case set up by the plaintiffs, in brief in so far as relevant, was that they are co-owners and in joint possession to the extent of 1/6th share in the Regular Second Appeal No.2424 of 2010 2 property in dispute. The defendant Nos.1 to 9 were also co-owners, but they had sold the disputed property to defendant Nos.10 to 243, vide different registered sale deeds. The plaintiffs were stated to have filed another suit for setting aside the indicated sale deeds, which was dismissed by the trial Court, but the Ist appellate Court, while disposing of the appeal filed by them in that suit, has held that they can approach the competent Court for partition. According to the plaintiffs, now the relations between the parties are strained and they do not want to keep their shares joint and intend to partition the suit property. 4. Levelling a variety of allegations, in all, according to the plaintiffs, they are co-owners to the extent of 1/6th share and are entitled to partition the disputed property. They asked the defendants to partition the same but in vain, which necessitated them (plaintiffs) to file the present suit. On the basis of the aforesaid allegations, the plaintiffs filed the suit for partition and permanent injunction against the defendants, in the manner stated here-in-above. 5. The defendants contested the suit and filed separate sets of written statements, inter-alia, pleading certain preliminary objections of, maintainability of the suit, jurisdiction of the civil Court, locus standi of the plaintiffs, estoppel, non- joinder and mis-joinder of necessary parties etc. On merits, the ownership and joint possession to the extent of 1/6th share of the plaintiffs was denied. It was also denied that Narpinder Singh had sold the land more than that of his share. 6. The remaining contesting defendants have further pleaded that they are bonafide purchasers for a valuable consideration and have constructed their residential houses many years ago by spending huge amount and are residing therein. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 7. Controverting the allegations contained in the written statements and reiterating the pleadings of the plaint, the plaintiffs filed the replication. Regular Second Appeal No.2424 of 2010 3 8. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication:- 1. Whether plaintiff is entitled for possession partitioned through possession 1/6 share land measuring 55 bighas 02 biswas fully described in the head note of the plaint after adjustment deductions of the alienations made by the plaintiffs?OPP 2. Whether plaintiff is entitled permanent injunction restraining the defendants No.1 to 9 from alienating, mortgaging or creating specific superior portion and from alienating more than their share in the suit land?OPP 3. Whether plaintiff is entitled for restraining the defendants from raising any sort construction over any specific or superior portion of the above said land?OPP 4. Whether this court has no jurisdiction to try and decide the present suit?OPD 5. Whether plaintiffs neither the owner nor in possession of any part of the suit property?OPD 6. Whether plaintiff is estopped by their act and conduct from filing the present suit?OPD 7. Whether plaintiff has earlier filed suit for declaration and permanent injunction regarding the suit property, therefore, second suit is barred under law?OPD 8. Whether present suit is bad for non-joinder and mis- joinder of the parties?OPD 9. Whether plaintiff has not mentioned total land in the present suit, if so its effect?OPD 10.Whether suit is not maintainable in the present form?OPD 11.Whether defendants are bona fide purchasers of the suit land?OPD 12.Whether defendant Mukhtiar Singh son of Mohan Singh has purchased 4 biswas 10 biswasies from Mohinder Kaur wife of Gobinder Singh, defendant No.59, vide Regd. Sale deed No.27 dated 5.4.2000 No.8182, 7257, 5289, 866?OPD 13.Whether defendant Mukhtiar Singh is owner and possession of property bearing Khasra No.8182, Regular Second Appeal No.2424 of 2010 4 7257/5289/866?OPD 14.Whether plaintiff has no cause of action or locus standi to file the present suit?OPD 15.Whether plaintiffs have dragged the answering defendant into unnecessary limitation and they be burdened with special costs?OPD 16.Relief. 9. The parties produced oral as well as documentary evidence on record, in order to substantiate their respective stands. 10. On ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiffs, vide impugned judgment and decree dated 2.9.2006. 11. Aggrieved by the judgment and decree of the trial Court, they filed the appeal, which was also dismissed by the Ist Appellate Court, vide impugned judgment and decree dated 30.11.2009. 12. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how, I am seized of the matter. 13. Having heard the learned counsel for the appellant-plaintiffs, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in this appeal. 14. The solitary argument of the learned counsel that since in the earlier suit challenging the indicated sale deeds executed by defendant Nos.1 to 9, in favour of the remaining defendants, the plaintiffs were relegated to file the present suit for partition by the Ist Appellate Court, so, the Courts below ought to have decreed their suit for partition, is not only devoid of merit, but misplaced as well. 15. As is evident from the record, the plaintiffs have sought the partition and possession to the extent of 1/6th share in the land measuring 55 bighas 2 biswas. That means, the burden of proof was on the plaintiffs and in order to succeed, they have to prove their ownership to the extent of 1/6th share in the property in dispute, but they have miserably failed in this relevant connection. Regular Second Appeal No.2424 of 2010 5 Moreover, it has come in the evidence that they had already sold 6½ bighas out of the land in dispute, but this fact was not disclosed by them in the suit. The trial Court has recorded a finding of fact based on evidence that the plaintiffs have failed to prove their 1/6th share in the land in dispute. 16. Not only that, a perusal of the record would reveal that likewise other co-sharers have already sold the specific portion/plot to the vendees-defendants since about 20 years ago. They are bona fide purchasers and have already constructed about 200 houses and are residing therein. Ist Appellate Court maintained the findings of the trial Court and dismissed the appeal of the plaintiffs, vide impugned judgment and decree dated 30.11.2009, the operative part of which, is reproduced as under:- “After hearing both the sides and going through the record carefully, I find that the learned lower court has rightly dismissed the suit of the appellants as from the evidence as well as site plan prepared by the appellants, it is clear that the property has already been carved out into plots and the respondents no.10 to 243 being vendees from co-sharers are in exclusive possession of these plots, which have been purchased by them by way of different sale deeds about twenty years back. This fact has also been admitted by one of the appellants Ranjit Singh while appearing in the witness box as PW1 during his cross- examination that there are residential houses constructed in the suit property for the last 20/25 years and the streets have also been left in six bighas of the land. He did not know how much property was sold by which of the co- sharer. He also stated that he did not know that except 2½ bighas of land, the entire property is in occupation of the vendees, who have raised the construction of the houses. He has further admitted that the vendees have constructed their respective houses about 10/15 years back. He has further admitted in his cross-examination that he cannot tell from the site plan placed on the file that how much portion has been left in streets, but he stated that his Regular Second Appeal No.2424 of 2010 6 father has not sold any property, but lateron his mother and his brothers have sold about 6½ bighas of land. This fact has not been pleaded by the appellants in their pleadings, rather they have filed the suit for separate possession by way of partition out of 55 bighas 2 biswas despite the fact that they have sold 6½ bighas of land themselves. He has also admitted that they are not in possession of any portion of the property in suit. The said witness has also admitted during his cross-examination that he cannot tell that Rajinder Kaur and Major Singh have constructed their houses about 20/30 years back and these houses are within the Municipal Limits. He admitted that Municipal Council has provided the drains and there are streetlights. He has also admitted that it came to his knowledge that the co-sharers have sold the plots about 7/8 years back. All the vendees have raised construction of the houses about 80-90% area. He further stated that he did not know that what portion has been left at the spot, which is joint between them. He also admitted that the vendees are not at fault and they have purchased the property after going through the revenue record. Even he admitted that the houses have been constructed in entire 55 bighas of the land and remaining portion has been left in streets and drains. He further admitted that they are out of possession of their share after sale of 6½ bighas of the land. They have also 6½ bighas of land about 10/15 years back and they have also raised the construction of their houses. He admitted that there are about 200 houses constructed in the suit property. His entire cross- examination shows that the co-sharers are selling the plots after carving out a colony, wherein they have left the passages where the Municipal Council has constructed drains. The streets lights are there. The appellants, have already sold 6½ bighas of the land without getting the property partitioned about 10/15 years back. Evidence has also come on the file that there are about 200 residential houses in the property in suit and no property has been left vacant except for the drains and streets. All Regular Second Appeal No.2424 of 2010 7 this further goes to show that the co-sharers are selling the specific portions to the vendees since about 20 years back, where the vendees have raised the construction of their houses. When, there are about 200 houses in existence in the suit property, the partition of the suit property is not practically possible, which would cause an reparable loss to the vendees who have constructed the residential houses after spending lakhs of rupees. Thus, I am of the view that learned lower court after considering all facts and circumstances of the case has rightly observed that the appellants have failed to prove that they have 1/6 share in the land measuring 55 bighas 2 biswas. They have already sold 6½ bighas of the land and as such, the appellants are not entitled to any permanent injunction restraining the respondents No.1 to 9 from alienating the property to the extent of their share and the appellants are also not entitled to permanent injunction restraining the respondents from raising any sort of construction over the portion which is in their possession and that the suit of the appellants for partition is not maintainable, when the parties have already alienated the land by way of specific portion. As such, I do not find any illegality or irregularity in the impugned judgment and decree and therefore, there is no need to cause any interference in the findings of learned lower court.” 17. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well reasoned Regular Second Appeal No.2424 of 2010 8 decision already arrived at by the Courts below, in this regard. 18. In other words, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 :2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the courts below as contemplated under section 100 CPC, in the obtaining circumstances of the instant case. 19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 20. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 8.7.2010 Judge AS