IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 682 of 2008. Reserved on: 01.12.2010. Decided on 21.02.2011. _____________________________________________________ Pawan Kumar and another. …Appellants. -Versus- Chandan and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. Ajay Sharma, Advocate. For the respondents. : Mr. Vivek Thakur and Ms. Tim Saran, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 15.09.2008, passed by the learned District Judge, Una, Himachal Pradesh in Civil Appeal No. 31 of 2005. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake), had instituted a suit for preliminary decree of separate possession by way of partition of the premises, denoted by letters ‘ABCDEFG’, as shown in yellow circumscription in the attached site plan, 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - situated in Lal Lakir Area (Abadi area) in village Mawa Kaholan, Tehsil Amb, District Una, with consequential relief of permanent injunction restraining the defendants-appellants (hereinafter referred to as “the defendants” for brevity sake) from changing the existing nature by way of raising any sort of construction, cutting and removing any tree from the premises. According to the plaintiffs, they are entitled to ½ share and the defendants are entitled to the remaining ½ share in the suit property, which is jointly owned and possessed by them and the same cannot be conveniently used for their benefit. 3. The defendants resisted the suit by filing a written statement. On merits, the defendants have alleged that the plaintiffs have 1/4th share in the property described in red colour in the site plan and marked with letters ‘ABCD’, which was joint house constructed by Agya Ram, but the defendant No. 1 has spent huge amount of Rs.30,000/- in the repair work of the old house and is coming in possession of the same. The plaintiffs are government employees and they have constructed a big house at Una and are living there for the last 20 years. The plaintiffs are not entitled to ½ shares, as claimed. The defendant No. 1 has constructed the house shown in green colour and marked as EFGH in the site plan and this portion has been wrongly mentioned as joint property. 4. Plaintiffs filed the replication. The learned trial Court framed as many as eight issues. The suit was decreed for half share in the suit property, shown in the site plan Ex. PW-1/A and, consequently, the preliminary decree was passed. It was clarified that while partitioning area underneath portion EFGH, shown in - 3 - Ex. DW-1/A shall be allotted to defendant No. 2, who had constructed it and in lieu of this, the plaintiff would be given vacant land in between this portion and the abadi denoted by letters A to D shown in red colour in site plan Ex. DW-1/A. The preliminary decree was passed on 08.03.2001. Thereafter, plaintiffs moved an application for passing a final decree. The learned trial Court appointed the Local Commissioner to partition the property in sequel to the preliminary decree passed on 08.03.2001. The Local Commissioner filed the report, to which the defendants filed the objections. Plaintiffs filed reply to the objections preferred by the defendants. Learned trial Court dismissed the objections and the proposed partition was accepted on 29.01.2005. The defendants preferred an appeal against the order dated 29.01.2005 before the learned District Judge, Una. The same was dismissed by him on 15.09.2008. This Regular Second Appeal is preferred against the judgment dated 15.09.2008. 5. The Regular Second Appeal was admitted on the following substantial question of law: “Whether the report of the Local Commissioner was not in consonance with the decree passed by the trial Court and the learned lower appellate Court has mis- appreciated and mis-interpreted the aforesaid document? 6. Mr. Ajay Sharma, learned counsel for the appellants has strenuously argued that the report of the Local Commissioner dated 18.12.2004 is not in accordance with the preliminary decree dated 08.03.2001. According to him, the learned Courts below - 4 - have mis-read the oral as well as documentary evidence led by the parties. 7. Mr. Vivek Thakur, learned counsel for the respondents has supported the judgment dated 15.09.2008. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Plaintiffs had instituted the suit for partition with consequential relief of permanent injunction, restraining the defendants from changing the existing nature by raising any construction, cutting and removing trees etc.. 10. The plaintiffs have examined Shri Ganesh Chand as PW-1, who has prepared the site plan Ex. PW-1/A. Smt. Pushpa Devi, plaintiff has appeared as PW-2. She has deposed that the parties were joint owners of the suit property and she was having ½ share in the suit land and the defendants were having ½ share in the suit land. According to her, the suit land was not partitioned and in spite of her requests to the defendants, they were not ready and willing for partition. 11. The defendants had examined DW-1, who has exhibited the site plan Ex. D-1. DW-2 is Shri Pawan Kumar. According to him, he has spent an amount of Rs.30,000/- in the year, 1991. According to him, the plaintiffs were not entitled for partition of the house. According to him, the portion marked by letters EFGH in the site plan was constructed by him with his own money. He has examined DW-3 Amar Nath, Carpenter and DW-4, Bishan Dass. 12. Learned trial Court has appointed Local Commissioner to purpose the partition. The Local Commissioner - 5 - has visited the spot and furnished the report to the trial Court dated 18.12.2004. The defendants have filed objections to the report filed by the Local Commissioner. Plaintiffs have filed reply to the objections. The trial Court on the basis of report filed by the Local Commissioner, came to the conclusion that as per the preliminary decree, the portion EFGH was to be allotted to the objector, which has been so allotted to the objector in the proposed partition. The plaintiff was to be given vacant land and abadi which has been given to the plaintiff by way of proposed partition. Some vacant portion was also given to the objector (defendant). According to the Local Commissioner’s report dated 18.12.2004 Khasra No. 1517/2, measuring 0-00-32 and Khasra No. 1518/2, measuring 0-00-70 were given to the plaintiffs and Khasra Nos. 1517/3, measuring 0-00-03, Khasra No. 1518/3, measuring 0-00-32 and Khasra No. 1522/2, measuring 0-00-65 were given to the defendants as gair mumkin abadi. The Local Commissioner has excluded the construction raised by the defendants as per the site plan Ex. P-1, as shown in portion EFGH and allotted the vacant portion of land in between the portions ABCD and EGGH. In the preliminary decree, there is no mentioning that one room was given to the defendants-appellants. The final decree passed by the learned trial Court and affirmed by the learned appellate Court is in accordance with law. The learned Courts below have correctly appreciated the report of the Local Commissioner dated 18.14.2004 and there is neither any mis- reading nor mis-appreciation of the report of the Local Commissioner, dated 18.12.2004. - 6 - 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 7 -