RSA No. 758 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 758 of 2011 Date of Decision: 15.02.2011. Smt. Uma Sharma and others .......Appellants Vs. Ved Parkash and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Harkesh Manuja, Advocate for the appellants. ..... SABINA, J. Plaintiffs had filed a suit for separate possession by way of partition. The case of the plaintiffs in brief was that Madho Ram Sharma, predecessor in interest of the plaintiffs, was initially owner in possession of 1/6th share out of the total land measuring 70 Bighas 7 Biswas. Madho Ram Sharma had given 1/12th share in the total land to his son Harish Chander Sharma, husband of plaintiff No.1 and father of plaintiff No.2 and in favour of his wife Jeo Devi vide judgment and decree dated 30.9.1975 passed in Civil Suit No. 537 of 1975 titled as 'Harish Chander Sharma Vs. Pandit Madho Ram Sharma'. Mutation was sanctioned in terms of the said judgment and decree. After the death of Madho Ram Sharma, his share was mutated in the name of his legal heirs. Harish Chander Sharma had died on RSA No. 758 of 2011 -2- 1.7.1984 leaving behind plaintiff No.1 and 2 and his mother Jeo Devi as his legal heirs. The mutation qua inheritance of Harish Chander Sharma was sanctioned in favour of the plaintiffs and Jeo Devi. Jeo Devi suffered a decree dated 27.9.1984 in favour of plaintiff No.1 and 2. Mutation was sanctioned in pursuance of the said decree. Thus, plaintiff No.1 had become joint owner in possession to the extent of 10/24 share and plaintiff No.2 had become owner in joint possession of 13/24 share out of the suit land. Plaintiff No.1 had relinquished her 250/28140 share in favour of plaintiff No.2 vide relinquishment deed dated 12.6.2000. Mutation in this regard was duly sanctioned. Plaintiff No.1 had gifted her share i.e. 250/28140 in favour of plaintiff No.3 vide gift deed dated 30.5.2000. Mutation was duly sanctioned in this regard. Plaintiff No.2 had also gifted 250/28140 share to plaintiff No.3 vide gift deed dated 1.6.2000. Thus, plaintiff No. 3 had also become a co-sharer in the suit land to the extent of 500/28140 share. The land had not been partitioned, so far. Some of the land was being used for commercial, residential and industrial purposes, whereas portion of the suit land was being used for agricultural purposes. Hence, the suit for partition was filed. Defendants No. 1, 2, 4 to 7 in their written statement, averred that Budh Ram and Mannu Lal were the owners of the suit land. After the death of Budh Ram, his one half share was inherited by his three sons namely Kundan, Madho Ram and Lal Chand. After the death of Kundan Lal, his share was mutated in favour of his wife Bhagwanti Devi and his son Ved Parkash and daughters Shakuntla Devi and Sushila in equal shares. Lal RSA No. 758 of 2011 -3- Chand sold his 168/5640 share to Ramesh Dutt and his remaining land i.e. 772/5640 share went to his wife Jai Devi and sons namely Abinash and Ajay. On the death of Jai Devi, her share was inherited by her two sons. After the death of Mannu Lal, his share was mutated in favour of his widow Chander Kala, his daughter Krishna Devi and Sheela Devi, widow of his pre- deceased son. Krishna Devi daughter of Mannu Lal executed a relinquishment deed in favour of her mother Chander Kala and her sister-in-law Sheela Devi in equal shares. Thus, Chander Kala and Sheela Devi became owners to the extent of 1410/5640 share each. Chander Kala gifted her share to Ved Parkash, defendant. Sushila daugther of Kundan Lal executed a relinquishment deed qua her share in favour of her brother Ved Parkash. Shakuntla Devi sold her share to her brother Ved Parkash. Bhagwanti Devi executed a will qua her share in favour of her son Ved Parkash. Thus, Ved Parkash became owner to the extent of 2350/5640 share in the entire land. Madho Ram during his lifetime transferred 2/3rd share out of his 1/6th share in the land to his son Harish Chander and his wife Jeo Devi. Madho Ram had constructed a house in a portion of joint land. When Madho Ram was raising more construction over the joint land, a dispute arose between the parties and the land was mutually partitioned in the year 1977 taking care of the existing possession of the co-sharers, valuation and the location of the land. After partition, Madho Ram sold 6 Biswas of land bearing Khasra No. 31/3/2/1 to defendants No. 21 to 24 vide sale deed dated 10.8.1979 alleging himself to be the absolute owner of the suit property. Defendant No. 22 sold 1 Bigha 10 Biswas of land RSA No. 758 of 2011 -4- to M/s Paliwal Exports, Panipat. In the month of September 1985, Uma widow of Harish Chander executed two sale deeds in favour of Asha Malik alleging herself to be the absolute owner of the land being sold. Madho Ram had also transferred specific portion of the land to R.D.Paliwal and others and Lokesh. Usha, daughter of Madho Ram constructed a house over an area measuring 431 sq. yds. The other contentions in the plaint were denied. Defendant no. 17, in his written statement, averred that he had purchased the land and had raised construction thereon. No objection was raised by the plaintiffs when he had raised construction over the land, purchased by him. The said defendant had purchased 140 sq. yds. of land from Ved Parkash vide sale deed dated 22.1.1979 and had got some land vide gift deed dated 16.2.1999 from Jawahar Lal who had purchased the same vide registered sale deed dated 27.4.1976 from Madho Ram. Defendant No. 20, in his written statement, averred that Harish Chander Sharma had sold the specific piece of land to the answering defendant about 20 years ago. Thereafter, he had constructed a factory on the land purchased by him and since then he was in exclusive possession of the other portion of the land. Defendant No. 25, in his written statement, averred that he had purchased 2/3rd share of plot measuring 333.½ sq. yds out of Khasra No. 29/27 min. from Uma Devi vide sale deed dated 17.9.1985 in the name of his wife Asha Malik. At that time, the vendor had represented herself to be the absolute RSA No. 758 of 2011 -5- owner of the said plot. Defendants No. 21 to 24, in their written statement, averred that they had purchased 6 Bighas of land bearing Khasra No. 31/3/2/1 from Madho Ram vide sale deed dated 10.8.1979. Madho Ram had described himself to be the absolute owner of the suit property. The other allegations of the plaint were denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to a decree for possession by way of partition as prayed for on the grounds as averred in the plaint? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is bad for non joinder of parties ? OPD 4. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD 5. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD 6. Whether the plaintiffs have no locus standi to file the present suit? OPD 7. Whether the suit is bad for partially partition of land? OPD 8. Relief.” Vide judgment and decree dated 12.12.2009, the trial court dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal and the RSA No. 758 of 2011 -6- same was dismissed by Additional District Judge, Panipat vide judgment and decree dated 13.4.2010. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. Plaintiffs had filed the suit for partition. However, the plaintiff No.1 Uma Sharma in her cross examination deposed that a colony had been carved out of the total land measuring 70 Bighas 7 Biswas and was known as Paliwal Colony. The said colony came into existence about 40 years ago. The roads and streets had also been carved out in the suit land. There were factories and houses constructed in the land in dispute. The persons, who had raised construction, were in possession of their respective portions. PW-1 Sandeep Kaushik in his cross examination deposed that Uma Sharma had given him 1257 sq. yds. of specific portion by way of gift deed. He had raised a house on the said portion in the year 1975-76. Roads and streets were in existence in the suit property. Factories, houses and shops were in existence in the suit property. No portion of the suit property was vacant. In these circumstances, learned courts below had rightly held that the suit land had already been partitioned by the parties as the said fact was evident from their act and conduct. A colony had been carved out about 40 years ago. Factories, shops and houses were in existence in the suit property. Roads and streets were also in existence in the suit property. In these circumstances, both the courts below had RSA No. 758 of 2011 -7- rightly held that the suit of the plaintiffs for partition was liable to be dismissed as the parties were already in possession of specific portion of the suit property. The parties had also been executing gift deeds, sale deeds and release deeds qua specific portions of the suit property. The vendees or the donees were in possession of the portion which had given to them by way of sale deed or gift deed and thereafter, they had raised construction over the portion which had given to them by way of sale deed or gift deed. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE February 15, 2011 Gurpreet