R. S. A. No. 1981 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1981 of 2010 Date of Decision : February 24, 2011 Gian Singh .... Appellant Vs. Dr. Amrik Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sandeep Jain, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 – Gian Singh, who was successful in the trial court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Suit was filed by respondent no.1 – plaintiff Dr. Amrik Singh against defendant no.1 – appellant and proforma respondents no. 2 to 4/ defendants no.2 to 4. It is undisputed that plaintiff and defendants no.1 to 3 are sons of defendant no.4 Ram Piari wife of late Sohan Lal. It is also undisputed that suit property was owned by Sohan Lal (since deceased). Plaintiff and R. S. A. No. 1981 of 2010 2 defendants are legal heirs of Sohan Lal. The plaintiff alleged that there was family settlement, on the basis of which, two agreements dated 26.06.1998 were executed. The plaintiff accordingly alleged that plaintiff and defendant no.1 are entitled to half share each in property described in head note `B' of the plaint and plaintiff and all the defendants are entitled to 1/5th share each in the remaining suit properties. The plaintiff also alleged that even if the aforesaid agreements are not proved, even then the parties are entitled to the suit properties as mentioned herein before. The plaintiff accordingly sought partition of the suit properties. Defendants no. 2 and 3 admitted the claim of the plaintiff. Defendants no. 1 and 4, by filing separate written statements, contested the suit. However, relationship between the parties was admitted. It was also admitted that Sohan Lal was owner of the suit properties. However, other plaint allegations were controverted. Defendant no.4 also alleged that she had sold her share in the suit property mentioned in Part (a) (1) in the head note of the plaint to one Balwinder Kaur vide sale deed dated 28.10.2003 and the said vendee is in possession of the same as exclusive owner and therefore, said vendee is also necessary party to the suit. Various other pleas were also raised. Learned Civil Judge (Junior Division), Nawanshahr, vide judgment and decree dated 15.01.2007, dismissed the plaintiff's suit. R. S. A. No. 1981 of 2010 3 However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Nawanshahr, vide judgment and decree dated 08.12.2009 and thereby, partition suit filed by the plaintiff has been decreed holding that plaintiff and all the defendants have 1/5th share each in all the suit properties. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant, at the outset, submitted that typed copy of judgment of the trial court, filed in the appeal, has some errors. Accordingly, correct typed copy of judgment and decree of the trial court, filed today in Court by learned counsel for the appellant, are taken on record. Learned counsel for the appellant vehemently contended that case of the plaintiff is based on alleged two agreements dated 26.06.1998, which have, however, not been proved and therefore, the plaintiff's suit could not be decreed. The contention, although apparently very attractive, is completely misconceived and devoid of merit. The plaintiff has specifically pleaded in the plaint that even if the said agreements are not proved, even then the plaintiff is entitled to his share in the suit properties, as mentioned in the plaint. Consequently, irrespective of whether the aforesaid agreements have been proved or not, the plaintiff is entitled to R. S. A. No. 1981 of 2010 4 seek partition of the suit properties, in which he is proved to be co-sharer to the extent of 1/5th share. In the aforesaid context, it has to be noticed that in view of admitted facts, the plaintiff has 1/5th share in the suit properties because relationship between the parties is not disputed. Plaintiff and defendants no.1 to 3 are sons of Sohan Lal, whereas defendant no.4 is wife of Sohan Lal (since deceased). It is also admitted fact that Sohan Lal was owner of the suit properties. Consequently, the plaintiff and all the defendants being his heirs, inherited the suit properties in equal shares i.e. 1/5th share each, as rightly held by the lower appellate court. It may be mentioned that the plaintiff claimed that he and defendant no.1 have half share each in suit property described at `B' in the head note of the plaint, but the plaintiff miserably failed to depict as to how it is so. Consequently, his claim in this regard has been discarded and plaintiff and all the defendants have been found to have 1/5th share each in all the suit properties. This position emerged from the admitted facts. It is surprising as to why the instant second appeal has been preferred by defendant no.1 when the lower appellate court has passed judgment and decree in view of admitted facts. Faced with the aforesaid situation, learned counsel for the appellant contended that the lower appellate court should have passed preliminary decree for partition and could not pass final decree for partition. This contention is also misconceived because the lower appellate court has R. S. A. No. 1981 of 2010 5 not allocated separate portions of the suit properties to different parties by metes and bounds. On the other hand, the decree passed by the lower appellate court is preliminary decree of partition, although the word `preliminary' has not been specifically mentioned in the judgment and decree of the lower appellate court. However, it is manifest and is also clarified hereby that lower appellate court has passed preliminary decree for the partition of the suit properties. For the reasons aforesaid, I find no merit in the instant second appeal. No question of fact, much less question of law or substantial question of law, arises for determination in the instant second appeal in view of admitted factual position in the pleadings. The instant second appeal is completely misconceived and frivolous and meritless and is accordingly dismissed in limine. February 24, 2011 ( L. N. MITTAL ) monika JUDGE