R. S. A. No. 3957 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3957 of 2009 Date of Decision : January 28, 2011 Prabhu Ram and another .... Appellants Vs. Balbir Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Navneet Singh, Advocate for Mr. Inder Pal Goyat, Advocate for the appellants. Mr. Hari Om Sharma, Advocate for respondents no.1 to 5. * * * L. N. MITTAL, J. (Oral) : Plaintiffs no.1 and 2 have filed the instant second appeal after remaining unsuccessful in both the courts below. Plaintiffs i.e. appellants and proforma respondents no. 17 to 30 filed suit for partition of 02 kanals 02 marlas land comprised of khasra no.1522/1 (1-5) and 1522/2 (0-17) alleging that the parties are joint owners in possession of the suit land, which has not yet been partitioned. Plaintiffs and proforma defendants 6 to 13 have 7/18th share in the suit land and R. S. A. No. 3957 of 2009 2 contesting defendants no.1 to 5 have the remaining 11/18th share therein. Since contesting defendants refused to partition the suit land, the plaintiffs filed the instant suit for partition. Defendants no. 6 to 13 were proceeded ex-parte in the trial court. Defendants no.1 to 5 put in appearance through counsel. However, written statement was filed by defendants no.3 to 5 only. Plaint allegations were broadly controverted. It was pleaded that defendants no.1 to 5 have purchased land measuring 02 kanals 02 marlas (suit land) of khasra no.1522 from Risala etc. - co-sharers to the extent of 1/3rd share in the joint land vide sale deed dated 27.08.1966 and since then, they are in possession of the suit land. However, Risala etc. - vendors of contesting defendants have not been impleaded as party to the suit and therefore, the suit is bad for non-joinder of necessary parties. It was pleaded that total joint land was 337 kanals 12 marlas, out of which plaintiffs and proforma defendants no.6 to 13 have no concern with 01 kanal 05 marla land i.e. the suit property. Plaintiffs have no right to challenge the sale deed dated 27.08.1966. It was also pleaded that plot no.1428 measuring 16 marlas was also part of joint property, but said land has not been included in the instant suit and therefore, suit is bad for partial partition. It was also pleaded that defendants no.1 to 5 are exclusive owners in possession of 01 kanal 05 marlas land comprised of khasra no.1522/1 out of the suit land and nobody R. S. A. No. 3957 of 2009 3 else is co-sharer therein. Remaining 17 marlas land out of the suit land has already vested in Municipal Committee. The plaintiffs have no right to get the same partitioned. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Narwana, vide judgment and decree dated 30.07.2007, dismissed the suit being bad for partial partition on account of non-inclusion of 16 marlas land of khasra no.1428. First appeal preferred by plaintiffs no.1 and 2 has been dismissed by learned Additional District Judge, Jind, vide judgment and decree dated 05.11.2008, holding the suit to be not only bad for partial partition on account of non-inclusion of 16 marlas land of khasra no.1428, but also bad for non-joinder of all co-sharers. Feeling aggrieved, plaintiffs no.1 and 2 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that land of khasra no.1428 was separately sold by all the co-sharers vide sale deed dated 22.05.1998 (Ex.P-7) and therefore, the said land was no longer joint between the parties. It was also pointed out that contesting defendants no.1 to 5 purchased 01 kanal 05 marlas land out of the suit land measuring 02 kanals 02 marlas only vide sale deed dated 27.08.1966 (Ex.D-2) and thus, defendants no.1 to 5 were also not co-sharers in land of khasra R. S. A. No. 3957 of 2009 4 no.1428. It was also pointed out that Risala etc. vendors of contesting defendants no. 1 to 5 no longer remained co-sharers in the suit land and all the co-sharers of the suit land measuring 02 kanals 02 marlas have been joint in the suit and therefore, the suit cannot be said to be bad for non- joinder of necessary parties or any other co-sharer. On the other hand, learned counsel for respondents no.1 to 5 vehemently contended that sale deed Ex.D-2 dated 27.08.1966 in favour of defendants no.1 to 5 is prior in time to sale deed dated 22.05.1998 (Ex.P-7) and pursuant to sale deed dated 27.08.1966, defendants no.1 to 5 had become co-sharers in suit land as well as land of khasra no.1428, but defendants no.1 to 5 did not join the other co-sharers in sale deed Ex.P-7 regarding sale of land of khasra no.1428 and therefore, defendants no.1 to 5 continued to be co-sharers in the land of khasra no.1428 also. It was also accordingly contended that other co-sharers of the suit land and khasra no.1428 have not been impleaded and therefore, the suit has been rightly dismissed on the ground of partial partition and non-joinder of other co- sharers. I have carefully considered the rival contentions. It is undisputed that application dated 05.11.1996 for partition of agricultural land was moved before the Revenue Court, excluding the suit land measuring 02 kanals 02 marlas and also excluding the land R. S. A. No. 3957 of 2009 5 measuring 16 marlas of khasra no. 1428 being gairmumkin land, for which partition suit could not lie before the Revenue Court. Remaining agricultural land was partitioned vide order dated 06.03.1998 of the Revenue Court. However, thereafter, land of khasra no.1428 was sold by all the co-sharers vide sale deed dated 22.05.1998 (Ex.P-7) and consequently, only the suit land measuring 02 kanals 02 marlas remained joint. Perusal of sale deed Ex.D-2 also reveals that Risala etc., through the said sale deed, sold 01 kanal 05 marlas land to defendants no.1 to 5 out of the suit land measuring 02 kanals 02 marlas. In the said sale deed, there is no reference whatsoever to land of khasra no.1428. Consequently, pursuant to the said sale deed (Ex.D-2), defendants no.1 to 5 became co-sharers in suit land measuring 02 kanals 02 marlas only and did not become co-sharers in land of khasra no.1428, in which defendants no.1 to 5 purchased no share. Consequently, contention raised by defendants no.1 to 5 that they also became co-sharer in land of khasra no.1428 also cannot be accepted. In this context, it would be significant to notice that defendants no.1 to 5 did not even raise any such contention in the written statement that they were also co-sharers in land of khasra no.1428. On the contrary, defendants no.1 to 5 claimed to be exclusive owners in possession of 01 kanal 05 marlas land of khasra no. 1522/1 out of the suit land measuring 02 kanals 02 marlas. Thus, the contention raised by counsel for R. S. A. No. 3957 of 2009 6 defendants no.1 to 5 is not only untenable on merits, but is also contrary to the stand of contesting defendants no.1 to 5 in the written statement. From the aforesaid discussion, I find that the following substantial question of law arises for determination in the instant second appeal :- “Whether finding of the courts below in non-suiting the plaintiffs on the ground of partial partition and finding of the lower appellate court in non-suiting the plaintiffs on the ground of non-joinder of necessary parties also, is illegal and perverse and unsustainable in law ?” For the reasons already recorded herein before, I find that the suit is neither bad for partial partition nor bad for non-joinder of necessary parties. Consequently, finding of the courts below to the contrary is completely perverse and illegal and unsustainable in law. Substantial question of law framed herein above is accordingly answered in affirmative i.e. in favour of the plaintiffs. As a necessary upshot of the discussion aforesaid, the instant second appeal is allowed. Judgments and decrees of both the courts below are set aside. Partition suit filed by the plaintiffs is decreed holding that the R. S. A. No. 3957 of 2009 7 plaintiffs and defendants no.6 to 13 have 7/18th share in the suit land measuring 02 kanals 02 marlas land of khasra nos.1521/1 (1-5) and 1522/2 (0-17). Preliminary decree for partition is accordingly passed. Parties are left to suffer their respective costs throughout. January 28, 2011 ( L. N. MITTAL ) monika JUDGE