R.S.A. No.3090 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3090 of 2008 Date of Decision:30.09.2008 Gopal Singh .....Appellant Vs. Mahender Singh and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. S.S. Godara, Advocate for the appellant. **** HARBANS LAL, J. The genesis of the suit are that the parties are joint owners in possession of the suit property wherein the plaintiff and Gopal Singh, defendant have half share and Bhawana, defendant is the owner of the other half share. The plot has not been partitioned as yet. Shankar, the father of Gopal Singh, defendant had constructed a house in Khasra No.344 (1 kanal 0 marla) which is jointly owned by the plaintiff as well as Gopal Singh, defendant. Bhagwana, defendant is in possession of Khasra No.345 (1 kanal 0 marla) while the remaining property is a “gadha khad” and is jointly owned by the parties. On these allegations, the plaintiff- Mahender Singh has filed the suit for possession by way of partition of the plot in dispute. In his written statement, Gopal Singh, defendant has alleged that the suit is bad for partition as the residential house constructed by their father which is also joint property has not been included in the suit property. After the death of their father, they had mutually entered into an oral settlement, and, thereafter, the answering defendant had constructed a house in the plot in his possession. It is further alleged that the plaintiff had filed Civil Suit R.S.A. No.3090 of 2008 -2- No.574 dated 21.8.2003 titled as `Mahender v. Gopal', which was decided on 27.10.2005 in which it was held that the plaintiff was not owner in possession of half share in plot No.344. This judgment has become final and binding between the parties. As such the plaintiff could not now claim partition of the same. Bhagwana defendant filed a separate written statement admitting the claim of the plaintiff. He submitted that he has no objection if the suit property was partitioned. The following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to possession by way of partition of the suit property, as prayed? OPP 2. Whether the suit of the plaintiff is maintainable in the present form? OPP 3. Whether the suit is bad for partial partition, if so, its effect? OPD 4. Whether the suit of the plaintiff is false and frivolous and is liable to be dismissed as such? OPD 5. Whether the judgment dated 27.10.2005 is civil suit No.574 of 2003 titled as Mahender Versus Gopal Singh shall operate as resjudicata between the parties, if so, its effect? OPD 6. Whether the plaintiff is estopped from filing the suit by his own act and conduct? OPD 7. Whether there has been an oral exchange of the residential house belonging to the father of the parties with the plot No.344 more than 33 years ago, if so, its effect? OPD R.S.A. No.3090 of 2008 -3- 8. Relief. After hearing learned counsel for the parties and examining the evidence on record, learned Additional Civil Judge (Senior Division), Fatehabad decreed the suit and passed the preliminary decree. Feeling aggrieved therewith, Gopal Singh, defendant went up in appeal, which has also been dismissed by the Court of learned Additional District Judge, Fatehabad vide his judgment and decree dated 22.7.2008. Feeling dissatisfied therewith, the defendant- appellant has preferred this appeal. I have heard learned counsel for the defendant- appellant, besides perusing the findings returned by both the Courts below with due care and circumspection. A short point raised by Mr. S.S. Godara, Advocate on behalf of the defendant- appellant is that the judgment delivered in Civil Suit No.574 of 2003 dated 21.8.2003 bearing caption `Mahender v. Gopal' on 27.10.2005 operates as resjudicata to the present suit and that being so, both the Courts below have gravely erred in decreeing the suit. I regret my inability to be one with Mr. Godara. The learned Additional District Judge, Fatehabad in his impugned judgment dated 22.7.2008 has observed as under:- “In judgment Ex.D3, it was held that neither the present plaintiff nor defendant No.1 had succeeded in proving their exclusive possession and the said judgment cannot operate as resjudicata as the civil suit No.574-C of 2003 was a suit for permanent injunction in which present defendant No.2 was not even joined as a party. No person can be denied the right to partition merely because he has failed to prove his exclusive R.S.A. No.3090 of 2008 -4- possession in some of the proceedings.” It is axiomatic from these observations that the earlier suit in which Bhagwana, present defendant was not a party was a simpliciter suit for grant of permanent injunction whereas the instant one is for partition of the joint property. Thus, no fault can be found with the findings returned by the learned First Appellate Court. A glance through the concurrent findings returned by both the Courts below would reveal that the same are not liable to be disturbed. This apart, no substantial question of law arises for determination by this Court in this appeal. Sequelly, this appeal is dismissed. September 30, 2008 ( HARBANS LAL ) renu JUDGE