IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2350 of 2011 (O & M) Date of Decision: 25.05.2011 Karan Singh and others ……Appellants Versus Pawan Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. D.S. Pheruman, Advocate for the appellants. L.N. MITTAL, J (ORAL) CM No.6488-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of one day in filing the appeal is condoned. CM No.6489-C of 2011 Allowed as prayed for. Main appeal. Defendants No.1 to 5, having failed in both the Courts below, are in second appeal. RSA No.2350 of 2011 (O & M) - 2 – Respondent Nos.1 to 3/plaintiffs filed suit for partition of 3 kanals 1 marla land of khasra No.75 alleging that plaintiff No.1 has 1/9th share in it and plaintiff Nos.2 and 3 jointly have 1/9th share in the suit land which is joint land of the parties. Defendants inter alia pleaded that the suit is not maintainable being bad for partial partition. It was also alleged that plaintiffs have not included Abadi area which is also jointly owned by the parties. It was also pleaded that as per family settlement between the parties, suit land came to the share of defendants whereas other Abadi land came to the share of plaintiffs and accordingly defendants constructed their residential house in the suit land. It was, however, admitted that suit land is Abadi area and it is depicted in joint ownership of the parties in jamabandi. Various other pleas were also raised. Learned Civil Judge (Junior Division), Dasuya vide judgment and decree dated 25.09.2008 decreed the plaintiffs’ suit and passed preliminary decree of partition. First appeal preferred by defendants No.1 to 5 has been dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 10.02.2011. Feeling aggrieved, defendants No.1 to 5 have filed the instant second appeal. RSA No.2350 of 2011 (O & M) - 3 – I have heard learned counsel for the appellants and perused the case file. In the revenue record, both parties are recorded to be joint owners of the suit land in which plaintiff No.1 has 1/9th share and plaintiff Nos.2 and 3 also have 1/9th share. Presumption attaching to entry in jamabandi has not been rebutted. Defendants have failed to prove the alleged family settlement under which the suit land fell to the share of defendants. On the other hand, Mohan Singh defendant No.4 while appearing as DW-3 specifically admitted that they have joint khata of land with plaintiffs and suit land is part of the said joint khata. It is thus manifest that the suit land is joint land of the parties and there has been no family settlement or partition. The suit has, therefore, been rightly decreed for partition. Learned counsel for the appellants contended that part of the suit land is agricultural land having revenue record and, therefore, Civil Court has no jurisdiction to try the suit for partition. The contention is contrary to the pleadings of the defendants. In the written statement, the defendants specifically admitted that suit land is Abadi area. In view thereof, the aforesaid contention does not lie in the mouth of the appellants. Admission in pleadings unless withdrawn or amended is binding on the concerned party. In view of aforesaid admission in written statement, plaintiffs had no occasion RSA No.2350 of 2011 (O & M) - 4 – to lead any evidence to depict that the suit land is Abadi land and is not agricultural land. The aforesaid contention being diagonally opposite to the plea in the written statement cannot be accepted. Learned counsel for the appellants next contended that the suit is bad for partial partition because residential property in ‘lal laqir’ which was also joint property of the parties has not been included in the suit nor any issue on the plea of partial partition has been framed. The contention is fallacious and meritless. As regards framing of issue, issue No.2 has been framed on the plea of the defendants that the suit is not maintainable in the present form being bad for partial partition. The words ‘for partial partition’ have not been mentioned in issue No.2, but the said issue has been framed on plea of the defendants that the suit is not maintainable being bad for partial partition. The defendants were aware of their pleadings. They have also led their evidence on the aforesaid plea, although they have failed to substantiate the same. There is no cogent evidence to depict that any other property is also joint property of the parties. For the reasons aforesaid, it is manifest that there is no merit in the instant second appeal. Concurrent finding recorded by the Courts below in favour of the plaintiffs is fully justified by the evidence on record as well as admitted factual position. The said RSA No.2350 of 2011 (O & M) - 5 – finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 25.05.2011. A.kaundal