RSA No.396 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.396 of 2011 Date of decision: August 2, 2011. Modan Singh ... Appellant(s) v. Soni Singh & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri H.S. Dhandi, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. Plaintiff having lost in two rounds of litigation, has preferred the present regular second appeal. Appellant-plaintiff had instituted a suit for separate possession by way of partition of property measuring 0-K 1 Marla anal which was shown in the site plan attached with the plaint, however, detail and description of the property was given in the head-note of the plaint. Appellant-plaintiff had also sought consequential relief of permanent injunction with a prayer that the defendants to the suit be restrained from raising any construction on the suit property till partition of the property takes place. It was pleaded by the plaintiff that the suit property was joint in the name of Labh Singh to the extent of half share, Modan Singh to the extent of 1/3rd share and Jagir Singh to the extent of 1/6 share. According to the plaintiff, Jagir Singh had sold his share to Santa Singh, father of defendant No.1 vide registered sale deed dated 18.7.1958. RSA No.396 of 2011 -: 2 :- Santa Singh, during his life time, sold some portion of the property to Dara Singh, father of the appellant-plaintiff vide registered sale deed dated 9.7.1953. It was further stated that defendants No.2 and 3 are in possession of the part of the property as legal representatives of Dara Singh. Thus, defendant No.2 Bachan Singh and defendant No.3 Sarwan Singh are real brothers of the appellant-plaintiff. Upon notice, defendants No.1 and 2 appeared and filed their written statement. They raised a preliminary objection that the plaintiff is guilty of suppression of material facts and, therefore, the suit is liable to be dismissed. They averred that the suit property is joint between the parties and in their joint possession and the same has not been partitioned. It is further stated that in the year 1996, defendant No.1 Labh Singh threatened the plaintiff to encroach upon some portion of the suit property which was in possession of the plaintiff illegally. Plaintiff had earlier filed a suit for decree of perpetual injunction. That suit was dismissed by the court of Civil Judge (Junior Division), Ludhiana. After conclusion of the pleadings, the court had formulated the issues and the parties had led their evidence. The trial court upheld the plea of the defendants that the property was divided amongst co-sharers in the year 1952 and after division of the property, Santa Singh, Modan Singh and Jagir Singh took possession of their respective shares and constructed houses accordingly. The trial court held as under:- “13. ... Thus, the plaintiff himself had admitted that the property had already been partitioned and said partition has also been acted upon. Hence, these issues are decided against the plaintiff and in favour of the defendants.” RSA No.396 of 2011 -: 3 :- The findings given by the trial court were affirmed by the lower appellate court. I have heard Shri H.S. Dhandi, Counsel appearing for the appellant. This Court cannot become oblivious of the fact that the partition sought is only for 1 marla of land which is 25 square yards. There is a concurrent finding of fact that the suit property was divided between the parties in the year 1952 by meets and bounds. Thereafter, the sale deed was executed in favour of Santa Singh in the year 1953. The parties have been maintaining the partition arrived at between them since long and they have constructed their houses. By way of the present partition sought, the property already constructed since long have to be demolished. Furthermore, it has come in evidence that the appellant-plaintiff had earlier filed a suit against the respondents which was dismissed. A copy of the judgment has been brought on record as Ex.D1, site plan with that suit as Ex.D2 and the statements of appellant-plaintiff in the said suit as Ex.D3 and Ex.D4. After considering the entire evidence, the lower appellate court held as under:- “10. ... The plaintiff has admitted that the property has already been partitioned and from the evidence on the file, it has been proved that in pursuance of the partition, the parties came into physical possession of their respective shares. Though in the jamabandies, the land is shown joint and fact of partition not reflected. It is settled law that presumption of truthfulness to the jamabandies is rebuttable. In the case in hand, the evidence of the plaintiff himself rebutted the presumption attached to the RSA No.396 of 2011 -: 4 :- jamabandies. Hence, the entries in the jamabandies Ex.P.1 to Ex.P.4 cannot be relied upon in the light of evidence on the file. The law relied upon by learned counsel for the appellant is not applicable to the case in hand and facts of the case are distinguishable from the facts of the present case. Hence, I am of the view that the trial court has rightly dismissed the suit filed by the appellant.” Since the evidence has been considered by the courts below threadbare, and after analyzing the same, concurrent finding of fact has been returned, Counsel for the appellant has failed to convince this Court as to why this Court should re-appreciate and do re-appraisal of the evidence, especially when Counsel during course of arguments has not been able to formulate any question of law, much less a substantial one, for consideration of the Court. Consequently, the present appeal is dismissed in limine. [Kanwaljit Singh Ahluwalia] August 2, 2011. Judge kadyan