R. S. A. No. 3931 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3931 of 2010 Date of Decision : October 07, 2010 Bakhtawar Singh .... Appellant Vs. Prita @ Pritam Chand .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Harsh Aggarwal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Bakhtawar Singh, having lost in both the courts below, has come up by way of instant second appeal. Respondent plaintiff Prita @ Pritam Chand filed suit for separate possession of half share by partition of suit property measuring 1p marlas comprised of khasra no.1626/588 alleging that plaintiff is co-owner of the suit land to the extent of half share. Construction existing therein was raised jointly by plaintiff and by defendant's vendor. The suit property has not yet been partitioned. Accordingly, plaintiff sought partition of the suit property. R. S. A. No. 3931 of 2010 2 Defendant contested the suit and raised various preliminary objections. However, defendant admitted that plaintiff is owner co-sharer to the extent of half share in the land in question. The defendant, however, pleaded that plaintiff and defendant's vendor Swarna are real brothers. Previously, they were owners, but in separate possession of the suit land in equal shares. The defendant purchased the share of Swarna vide sale deed dated 19.05.2006 along with construction therein. Since then, defendant is in possession of the suit property. Parties are in separate possession at the spot as per their entitlement. The property is not joint property of the parties. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Balachaur, vide judgment and decree dated 25.07.2007, decreed the plaintiff's suit and passed preliminary decree for partition of the suit property. First appeal preferred by the defendant has been dismissed by learned District Judge, Shaheed Bhagat Singh Nagar, vide judgment and decree dated 09.02.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant at considerable length and perused the case file. As noticed herein above, the defendant, in his written statement itself, has admitted that plaintiff is owner co-sharer to the extent of half share in the suit land. Consequently, it is manifest that parties are joint owners of the suit land to the extent of half share each. This fact is also R. S. A. No. 3931 of 2010 3 proved from jamabandi Ex.P-3. Learned counsel for the appellant, however, contended that plaintiff and his brother Swarna (defendant's vendor) had effected mutual partition vide writing dated 06.04.1972 and northern half portion of the suit property fell to the share of Swarna, who sold the same to the defendant and therefore, the property is not joint, having already been partitioned. I have carefully considered the aforesaid contention, but find myself unable to accept the same. No such plea that there was partition between plaintiff and Swarna on 06.04.1972 was raised in the written statement nor any reference to document dated 06.04.1972 was made. Consequently, the said document and contention being beyond pleadings cannot be raised. It may be noticed here that in first appeal, the defendant made an attempt to amend the written statement to plead the said partition vide document dated 06.04.1972, but the amendment has been rightly disallowed by the lower appellate court. The defendant has admitted in the written statement that plaintiff is owner co-sharer to the extent of half share in the land in question. The said admission cannot be withdrawn by amendment. In addition to the aforesaid, partition allegedly effected vide writing dated 06.04.1972 was never reported to the revenue authorities. Consequently, it was no partition in the eyes of law. The alleged partition remained unimplemented for 34 years till the filing of the suit. Besides it, R. S. A. No. 3931 of 2010 4 writing dated 06.04.1972 is regarding the partition itself and creating rights in various immovable properties. Consequently, it required compulsory registration, but is unregistered. At the top of it all, writing dated 06.04.1972 does not pertain to suit property. Learned counsel for the appellant, on pointed inquiry, could not refer to any property described in the said writing to be answering the description of the suit property. The suit property is comprised of khasra no.1626/588, but no khasra no. has been mentioned anywhere in the aforesaid writing. Learned counsel for the appellant referred to property no.2 in the aforesaid writing, but according to recital in the said writing, western portion of the said property was given to defendant's vendor Swarna, whereas according to the sale deed in favour of defendant, as well as according to defendant's version and site plan, northern half portion of the suit property had fallen to the share of Swarna and has been sold to defendant. Consequently, property no.2 mentioned in the writing could not be suit property. From the aforesaid discussion, it is apparent that the suit property has never been partitioned. Learned counsel for the appellant emphasized that parties are in separate possession of the suit property i.e. half portion each. However, without going into the factual aspects, suffice to mention that mere separate possession by co-sharers, even under some mutual arrangement, does not amount to partition of the joint property. There is concurrent finding of fact by both the courts below R. S. A. No. 3931 of 2010 5 against defendant-appellant. The said finding is fully justified by the evidence on record and is supported by cogent reasons. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Lower appellate court is the final court of fact. Decision of the case hinges on finding of fact. The appeal is found to be bereft of any merit and is accordingly dismissed in limine. October 07, 2010 ( L. N. MITTAL ) monika JUDGE