Regular Second Appeal No. 3442 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3442 of 2008 Date of Decision: 19.1.2009 *** Ram Singh & Anr. ..APPELLANTS VS. Balwant Singh & Ors. ..RESPONDENTS CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Arun Yadav, Advocate for the appellants. *** ARVIND KUMAR, J. The appellants were defendants No.3 and 4 in the suit for possession by way of partition preferred by plaintiff-respondent No.1. The case set up by the plaintiff in the suit was by dint of sale- deed dated 26.7.1993 executed by Yad Ram, the co-owner, he has become co-sharer in the suit land along with the defendants and the same has not yet been partitioned. Thus, the relief of possession by way of partition with meets and bounds in respect of the suit land was sought. On the other hand, the prayer was opposed on the ground that the plaintiff is a stranger and had purchased the suit land from the co-sharers, who have already get the same partitioned, therefore, the plaintiff now cannot ask for partition of the suit land. Simultaneously, defendant No.10 in the main suit namely Surat Singh filed another suit arraying the plaintiff Balwant Singh as defendant therein and laid challenge to the sale deed dated 26.7.93 pleading therein that since the executant Yad Ram & Ors. were not competent to execute the said sale-deed, therefore, the purchaser Balwant Singh be restrained from interfering in his peaceful possession over the suit property under the garb of aforesaid sale-deed. Regular Second Appeal No. 3442 of 2008 2 Both the suits were consolidated and after the contest the learned trial court vide judgment and decree dated 12.11.1997 passed a preliminary decree in favour of plaintiff Balwant Singh to the effect that he is entitled to get the possession of his share by way of partition of the suit land by meets and bounds. However, the suit filed by Surat Singh was dismissed. Thereafter, an application for passing the final decree was filed by the plaintiff and the Court below after obtaining the report of local commission suggesting the mode of partition, passed the final decree dated 10.1.2005, making the report and site plan as part of the decree-sheet. Aggrieved with the same, the appellants Ram Singh and Ram Kanwar preferred an appeal before the appellate Court below and laid challenge to the final decree dated 10.1.2005, which was dismissed by the appellate court below vide judgment and decree dated 3.3.2008. Hence the instant regular second appeal has been filed, impugning the judgments and decrees dated 12.11.1997, 10.1.2005 and 3.3.2008. I have heard learned counsel for the appellants and have gone through the case file carefully. It emerges out from the record that the appeal filed against the judgment and preliminary decree was subsequently withdrawn. In other words the legality and impropriety of the preliminary decree was not assailed and the same was accepted. Thus, the appellants were rightly precluded from impugning the said preliminary decree while relying upon the case titled Teka (Died) through LRs Vs. Ram Phal and others 2005 (1) LJR 170 (P&H). Even otherwise, a perusal of record reveals that there was no dispute to the fact that the plaintiff-respondent No.1 becomes the co- sharer in the suit land by stepping into the shoes of Yad Ram etc., the co- sharers, by dint of sale-deed. Although, it was pleaded that the suit land was earlier partitioned between the co-sharers in a family settlement, but no evidence in that regard was produced Even it was not shown as to whether such family arrangement was intimated to the revenue authorities, rather the revenue record, so produced by the plaintiff, speaks volume about the fact that the suit land, which earlier was agricultural land and later converted to that of residential, is joint khewat of the parties and has not yet been Regular Second Appeal No. 3442 of 2008 3 partitioned and rightly held while passing the preliminary decree that the plaintiff is entitled to get his share by way of partition of the suit land by meets and bounds. So far as passing of the final decree is concerned, a perusal of the judgment and decree dated 10.1.2005 reveals that the Court below while keeping in view the convenience of the parties, validly decided the objections raised against the report of Local Commissioner, a revenue officer and held that the mode of partition suggested was fairly a practical and pragmatic one and passed the final decree while making the report and site plan made by the Local Commissioner as part of the said decree. There is nothing on record to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE January 19,2009 Jiten