RSA No. 2065 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2065 of 2005 Decided on : 01-05-2009 Ajaib Singh ....Appellant VERSUS Karnail Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. S.D.Bansal, Advocate for the appellant None for respondent no.1. Mr. Gurcharan Singh, Advocate for respondent no.2. MAHESH GROVER, J This is plaintiff's appeal filed against the judgment of the learned First Appellate Court dated 27.2.2004. A suit for partition was initiated by the plaintiff-appellant against the present respondents. Respondent no.1 is his brother while respondent no.2 is the person who had purchased property from Karnail Singh. It was the pleaded case of the appellant that the property initially belonged to one Dalip Singh who was the owner of 9 Bighas 6 Biswas of agricultural land. He was also in possession of some other properties. He has two wives namely Gulab Kaur and Tej Kaur. After his death, his estate was equally divided between his survivors i.e. Gulab Kaur and Tej Kaur. Both of them become owners to the extent of ½ share each i.e 4 Bighas 13 Biswas. Gulab Kaur also inherited a house and a plot from Dalip Singh. She sold her entire property i.e agricultural land, one house and a plot to RSA No. 2065 of 2005 2 Karnail Singh and Ajaib Singh vide sale deed dated 3.11.61 Ex.P-1 and translated version of the sale deed is on record as C-1. Karnail Singh sold his half share to Kulwant Singh-respondent no.2. It is pleaded by the appellant that after the purchase of the property from Gulab Kaur, the plaintiff-appellant and Karnail Singh were joint owners in possession of the property. The defendants were however threatening to interfere in the possession and therefore civil suit no.807 of 1988 was filed seeking to injunct them from alienating any specific portion of the property without effecting the partition. The suit was decreed on 15.2.92. During the pendency of the suit, the Court had ordered the maintenance of status quo regarding the demolition of the property in dispute which was demolished despite the injunction order and a contempt petition was also initiated by the appellant. Thereafter another suit for permanent injunction was filed by the appellant seeking permanent injunction to restrain the defendants from removing the malba of the demolished property and from raising any construction without effecting partition. In that case also the injunction was granted and the defendants were restrained from removing the malba or debris with an intention to reconstruct. The order was again disobeyed and another contempt petition was filed. It was pleaded that the appellant was unable to utilise his share of the property and therefore request for partition. The defendants contested the suit and pleaded that present suit was not maintainable as it was filed on the basis of decree dated 15.2.92 against which an appeal is pending. It was further pleaded that the appellant is claiming only partial partition and the entire property has not been included in the plaint. The joint property of the parties were existing at RSA No. 2065 of 2005 3 Todarpur Tehsil Samrala which is allegedly not included in the plaint. It is also pleaded that suit is bad for non-joinder of parties as one Tehal Singh was not joined as party. It was further pleaded that the suit is liable to be stayed under provisions of Section 10 and 151 & Order 2 Rule 2 CPC. On merits it was pleaded that there was family settlement between the appellant and Karnail Singh and the house at Todarpur Tehsil Samrala was given to appellant and house at Dadheri was given to defendant no.1 which was purchased by defendant no.2 vide sale deed dated 8.11.81. Since Karnail Singh was in exclusive possession of the house the subsequent vendee was also in exclusive possession of the property. Joint ownership of the property was denied. However, the earlier suit of 15.2.92 having been decreed on that date was not denied. Demolition of the property was denied. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to separate possession by way of partition of his share in the suit property?OPP 2. Whether suit is not maintainable in the present form?OPD. 3. Whether suit is bad for non-joinder of the necessary parties?OPD. 4. Whether suit is liable to be stayed u/s 10 of CPC? OPD. 5. Whether suit is barred u/O 2Rule 2 of CPC? OPD 6. Relief. Learned Trial Court on the basis of evidence before it decreed the suit of the appellant and held him entitled to half share of the property. In appeal, even though the findings were affirmed yet while disposing of the appeal following findings were returned :- RSA No. 2065 of 2005 4 “Para 16 In view of the discussion already made above, especially on finding that the suit property is still joint amongst the co-owners and has not been partitioned so far, therefore, the plaintiff is entitled to seek separate possession of his share by way of partition of his share in the suit property. Needless to mention that plaintiff would be entitled to possession of the property only to the extent of his share in the same. However, I find that the learned Lower Court erred in holding that the plaintiff is entitled to ½ share. A perusal of the sale deed Ex.P-1 (translated version Ex. C-1) shows that in fact, the plaintiff and defendant no.1 had jointly purchased ½ share in the house in question from Smt. Gulab Kaur alongwith other property. The boundaries of the house as mentioned in the sale deed are the same which have been described in the heading of the plaint. As such, it follows that both plaintiff and defendant no. 1 jointly had ½ share in the suit property and thus, it follows that plaintiff Ajaib Singh would have only ½ of ½ share i.e. 1/4th share in the suit property. Consequently, the findings of the learned Lower Court to the effect that plaintiff is entitled to possession of ½ share in the suit property are hereby modified and it is held that the plaintiff is entitled to separate possession of the suit property to the extent of ¼ share only. The findings thus on issue no.1 stands modified accordingly.” Learned First Appellate Court also went on to conclude that the suit was not maintainable for want of partial partition and also held that since half share of the property was purchased by both brothers from Gulab RSA No. 2065 of 2005 5 Kaur, the other co-sharer not having been impleaded was fatal to the case of the appellant. This has resulted in the filing of the present regular second appeal. It has been contended by the learned counsel for the appellant that a bare perusal of the findings of the learned First Appellate Court which have been extracted above shows that they are erroneous and perverse and deserve to be set aside. It is his contention that concededly Gulab Kaur had inherited 4 Bighas and 13 Biswas of land alongwith one house and one plot from Dalip Singh which she has sold to appellant and his brother Karnail Singh. There was thus no ambiguity on this count. Once the entire property has been sold by Gulab Kaur the beneficiaries were the appellant and his brother Karnail Singh to the extent of half share each. But the learned First Appellate Court erroneously recorded that they were owners to the extent of 1/4th share in the suit property. He further contended that the suit could not have been dismissed on the ground that partial partition had been prayed for especially in view of the fact that Karnail Singh even though he had filed written statement and had set up a family settlement in which he pleaded that the house in Village Todarpur Tehsil Samrala had been given to the appellant while the house situated in Dadheri came to his share yet he did not appear in the witness box to testify and neither any evidence to that effect has come on record. Consequently, the findings on this issue could not have been returned by holding that there was partial partition. He thus contended that on both the counts the Court has returned perverse findings and also pleaded that the following questions of law arise for the consideration of this Court:- 1. Whether findings regarding the appellant being entitled to 1/4th share of RSA No. 2065 of 2005 6 the suit property are erroneous and contrary to the conceded and pleaded case of the parties and has been arrived at by complete mis-reading of the evidence and therefore perverse and liable to be set aside or not? 2. Whether the suit could have been dismissed on the ground that it pertains to partial partition specifically when there is no evidence to the effect that there were other properties which have to be included in the instant suit for partition? On the other hand, learned counsel for the respondent no.2 contended that the findings of the learned First Appellate Court were perfectly correct when it recorded that the appellant was entitled to 1/4th share of the suit property. He referred to the reasoning of the learned First Appellate Court and stated that both the appellant and the respondent no.1 were joint owners to the extent of half share in the suit property. Therefore, Ajaib Singh will be entitled to ½ of the ½ share. He also contended that the suit necessarily had to be dismissed for want of partial partition. No one had put in appearance on behalf of respondent no.1. I have heard learned counsel for the appellant and have perused timpugned judgment and the record. Ex.P-1 is the sale deed (translated copy Ex. C-1) which reveals in no unambiguous terms that vendor Gulab Kaur had sold 4 Bighas and 13 Biswas of land to both appellant and respondent no.1. She has also sold a double storied house which was described as Kucha and Pucca built and was having two small rooms, one Baithak and a Chabara having the boundaries: East house of Pritam Singh and others; West street, North: house of Sewa Singh and others; South: House of Lehna Singh. She also sold a vacant plot the boundaries of which were described therein. It is thus RSA No. 2065 of 2005 7 abundantly clear that she has sold 4 Bighas and 13 Biswas which is half share of the property of Dalip Singh and a house and a plot inherited from him. Once the vendor Gulab Kaur has sold her entire property to the two brothers namely Ajaib Singh-appellant and Karnail Singh-respondent no.1, she was left with no interest in the property leaving two brothers to be owners to the extent of ½ share each. Strangely enough the learned First Appellate Court has resorted to a reasoning to hold that the plaintiff- appellant and respondent no.1 are owners to the extent of half share of the suit property which was totally correct. But thereafter, it went on to record a perverse finding by holding that each one of them will be entitled ½ share each of the aforesaid ½ share and went on to hold that appellant was entitled to 1/4th share. On the face of it, the reasoning is unsustainable and contrary to the record. It was not even the pleaded case of any of the parties. Therefore, the findings have to be termed to be perverse and have necessarily to be set aside. The first question of law which has been raised by the learned counsel for the appellant is therefore ordered accordingly. The next question that is to be determined is whether the suit is bad for partial partition. It has been noticed that Karnail Singh – respondent no.1 filed a written statement alongwith respondent no.2 and by filing the joint written statement set up a plea that there was a family settlement in which a house in Todarpur Tehsil Samrala went to appellant whereas house in Dadheri went to the share of respondent no.1. Except for the bald pleading, no evidence was led on this issue. Karnail Singh defaulted in participating in proceedings by not testifying before the Trial Court and therefore this plea which was set up could not be tested on the touch stone of the evidence and the plea of family settlement stood unproved. If that be RSA No. 2065 of 2005 8 so then the question of partial partition does not arise at all and only the claim of the appellant had to be considered and answered in view of the plea set up by him and on the basis of the evidence adduced by him. That apart since Karnail Singh-respondent no.1 did not substantiate his plea by way of any evidence the only evidence was brought by present respondent Kulwant Singh essentially a vendee from Karnail Singh. He is an alien to the arrangement of the family settlement consisting of the appellant and respondent no.1 and even if there was some family arrangement it does not lie in his mouth to plead the same. It is not for him to contend that the suit for partial partition is bad. In any eventuality, as observed earlier there being no evidence to that effect the plea also could not have been answered in the manner that has been done by the learned First Appellate Court. The said finding also deserves to be set aside and the second question of law has also to be answered in affirmative in favour of appellant that there is no evidence adduced on the plea that has been set up, the same could not have been accepted by the learned First Appellate Court. In view of the above, the appeal is accepted. Judgment and decree of the learned First Appellate Court is set aside and that of the Trial Court is restored and it is held that the appellant shall be entitled to half share of the suit property consisting of 4 Bighas and 13 Biswas and a house and a plot which is subject matter of the sale executed by Gulab Kaur in favour the appellant and respondent no.1. May 01, 2009 (Mahesh Grover) rekha Judge