R.S.A.No. 1883 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1883 of 2009 (O&M) Date of decision: 20.7.2009 Prem Kumar ......Appellant Versus Amar Nath and others .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Gourave Bhayyia, Advocate, for the appellant. **** SABINA, J. Plaintiff Prem Kumar filed a suit for possession by way of partition and for permanent injunction restraining defendants No. 1 to 3 from alienating the property to any person. The suit of the plaintiff was dismissed by the Additional Civil Judge (Sr.Divn.) Talwandi Sabo vide judgment and decree dated 18.8.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge (Fast Track Court), Bathinda vide judgment and decree dated 27.10.2008. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1883 of 2009 (O&M) 2 Court in para Nos. 3 to 5 of its judgment, are as under:- “3. Adumbrated in brief, the facts necessary for the disposal of this appeal are that Babu Ram, father of the appellant and respondent No. 1, was owner in possession of the property. He was karta of the family and the property was co-parcenary ancestral property in his hands. That after his death, the appellant is entitled to 1/7th share. That Babu Ram had expired in the year 1964, therefore, the appellant as elucidated in the head note of the plaint, is entitled to 1/7th share in the property. That Babu Ram was owner of the agricultural land also and mutation No. 6978 dated 21.10.1974 has been sanctioned in equal share in favour of the appellant and respondents No. 1 and 6. That Babu Ram had not partitioned the suit property during his life time and as such appellant is entitled to claim his share as above said i.e. 1/7th. The appellant through his power of attorney came to know that respondents No. 1 to 3 and 5 are making efforts to alienate the property and respondent No. 3 Parkash Chand in order to deprive the appellant, has illegally given 1/3 share from the property No. 1 i.e. residential house to Raj kumar his son, respondent No. 7 who had handed over the said portion to Mithu Lal son of Chanan Ram, respondent No. 8. That a suit was filed by R.S.A.No. 1883 of 2009 (O&M) 3 respondent No. 2 namely kesar Chand for obtaining the ownership and possession of the shop measuring 15’ x 24’, but appellant was not a party to the said suit. Thus the said judgment had got no bearing upon the rights of the appellant as in family settlement all the co-sharers were not a party to the co-promise/ partition, if any. Hence the present suit. 4. Upon notice, respondents/ defendants appeared and furnished written statement thereby taking objections of no locus/ standi and that the appellant has no concern with the property in dispute, which has fallen to the share of the respondent during the life time of Babu Ram and the respondent is in possession of the same house, whereas shop in question was given to the others i.e. appellant and other respondents, so the appellant has got no concern with the house in question. 5. in the written statement filed by respondent- defendant no. 5 Jagan Nath, it has been averred that Hans Raj, attorney of the appellant, is also a respondent no. 4, so the suit is not maintainable. It is further averred that Kesar Chand filed the suit against respondent no.5 and others, which was dismissed. The appeal was also decided against Kesar Chand. The respondent no. 5 is stated to be owner of the property in dispute. Suit is bad R.S.A.No. 1883 of 2009 (O&M) 4 for partial partition. Appellant has concealed the material facts and that the suit is bad on the principal of resjudicata. On merits, it has been averred that shop had fallen in the share of answering respondent. The other averments were denied one-by-one and prayer for dismissal of the suit was made. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner of 1/7th share in suit property? OPP 2. Whether the plaintiff is entitled to possession by way of partition of his share? OPP 3. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 4. Whether plaintiff has got no locus standi to file the suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the house in question measures 15x 100 feet was given to defendant No.3 in family settlement during life time of Babu Ram, if so its effect? OPD (defendant No.3) 7. Whether Hans Raj is not competent to act as general attorney of plaintiff? OPD (defendant No.5) R.S.A.No. 1883 of 2009 (O&M) 5 8. Whether shop in question measuring 15 x 24 feet fell to share of defendant No.5 in partition, if so, its effect? OPD (defendant No.5) 8-A Whether the suit is within limitation? OPP 8-B Whether the suit of the plaintiff is barred by principle of res judicata? OPD 3 and 5. 8-C Whether the suit is bad for partial partition? OPD 5. 9 Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for possession by way of partition with regard to residential house and shop cum residence. Both the Courts below after appreciating the evidence on record have held that the plaintiff had sought partial partition of the joint property owned by the parties and hence, the suit was not maintainable. Both the Courts below have held that as per revenue record placed on record a Gair Mumkin kiln land measuring 13 kanals 12 Marlas was also owned by the parties. Similarly Gair Mumkin Chumian measuring 3 kanals 2 marlas as per jamabandi Ex.D-22 was also jointly owned by the parties. Hence, it was rightly held by the Courts below that the suit for partial partition was not maintainable. R.S.A.No. 1883 of 2009 (O&M) 6 Initially the suit was filed by the plaintiff through his attorney Hans Raj (real brother- defendant No.4). On an objection taken by the defendants that defendant No.4 could himself not pursue the suit, Sunil Kumar filed his power of attorney. Both the Courts below have observed that Sunil Kumar was not conversant with the facts of the case and hence, the statement of the attorney failed to establish the case of the plaintiff. Since, the attorney, who had appeared on behalf of the plaintiff, had failed to establish the case of the plaintiff, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 20, 2009 anita