RSA No.3514 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3514 of 2010(O & M) Date of Decision:24.09.2010 Yad Ram .... appellant Versus Rattan Singh & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.C.B.Goel, Advocate with Mr.Nitin Jain, Advocate for the appellant **** RAKESH KUMAR GARG J.(ORAL): This is defendant's second appeal challenging the judgment and decrees of the Courts below, whereby final decree for partition has been passed against the appellant in pursuance of the preliminary decree dated 13.03.2002 which has admittedly become final between the parties. Admittedly, the plaintiff-respondent was also held entitled to separate possession by partition of the suit land to the extent of 3/16th share vide judgment and decree dated 13.03.2002. Thereafter, plaintiff- respondent filed an application for preparation of final decree. The trial Court appointed the Local Commissioner to suggest mode of partition. On the report of Local Commissioner, objections were invited and after hearing the parties, the final decree dated 03.04.2004 was passed in favour of the plaintiff-respondent. However, the aforesaid decree was challenged by the appellants by filing Civil Appeal No.25 of 09.04.2004\07.06.2004. The RSA No.3514 of 2010(O & M) 2 aforesaid appeal was accepted and the judgment and decree dated 03.04.2004was set aside vide judgment and decree dated 27.01.2005 passed by Additional District Judge, Gurgaon and the matter was remanded back to pass appropriate judgment and decree after giving due opportunity of being heard to the parties. After the remand, parties were granted opportunities to lead their evidence. However, appellant, except examining himself adduced no further evidence. While passing the final decree, vide judgment dated 19.02.2010, the trial Court observed as under: “Admittedly, as per judgment passed in the suit the plaintiff- decree holders are owners to the extent of 3/16th share in the suit land which is shown in a site plan attached with the main suit. Now, on the basis of evidence on file there is nothing that would not call for the appointment of local commission to partition the suit land as per the share of the parties and hence, finding merit in the application filed, the same is allowed and the plaintiff-decree holders are entitled for the final decree for partition of the suit land as per subsequent report of the local commission. The report thus submitted by the local commission be made a part of the final decree sheet. The present application for preparation of final decree is accordingly allowed.” Aggrieved from the aforesaid judgment and decree dated 19.02.2010, the appellant preferred an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 19.05.2010. While dismissing the appeal, the Lower Appellate Court observed as under: “It is for the appellants to prove that decree for partition and RSA No.3514 of 2010(O & M) 3 report of local commissioner is against record and without evidence. Learned counsel for the appellant has failed to show how the final judgment and decree is against record and without evidence whereas from the statement of Rattan Singh PW1, order and decree dated 03.04.2004 passed by Sh.Gopal Krishan, the then Addl.Civil Judge(Sr.Divn.), Nuh, it is proved that the learned lower Court appointed Sh.S.C.Gupta, Advocate, as Local Commissioner. He submitted his report dated 09.10.2003. On the local commissioner report, objections were invited and on hearing the final judgment and decree is passed. The final judgment and decree is in accordance with law and as per local commissioner report. Learned counsel for the appellant has failed to point out any illegality in the judgment and decree under challenge. The judgment under challenge is reasoned, speaking, as per pleadings and evidence on record.” Still not satisfied, the instant appeal has been filed by the defendant-appellant challenging the impugned judgment and decrees of the courts below submitting that the following substantial questions of law arise in this appeal: 1. Whether the judgment and decree of the courts below are perverse and legally not sustainable? 2. Whether the judgment and decrees of the courts below deserve to be set aside solely on the ground that the same have been passed without complying with the directions in the judgment dated 27.01.2005 remanding the case for fresh decision? 3. Whether in the facts and circumstances of the present RSA No.3514 of 2010(O & M) 4 case the judgment and decree of the courts below are sustainable being based on misreading of evidence on record? I have heard learned counsel for the appellant and perused the impugned judgment and decrees. There is no dispute that the preliminary decree dated 13.03.2002 passed in Civil Suit No.82 of 09.06.2000 between the parties wherein the plaintiff-respondents were held entitled to 3/16th share by way of partition has become final. Before the trial Court, which prepared the final decree of partition, it was for the appellant to prove that decree for partition determining the share of defendant-respondent and report of the Local Commissioner suggesting the mode of partition was against law. The courts below have recorded a finding of fact that appellant has failed to place on record any evidence on the basis of which, it can be pointed out that the preliminary judgment and decree dated 13.03.2002 suffers from any infirmity. Even before this Court, learned counsel appearing on behalf of the appellant was unable to show any such illegality in the aforesaid judgment and decrees dated 13.03.2002. Thus, no interference is called for in the impugned judgment and decrees vide which final decree of partition has been passed against the appellant. No substantial question of law, as argued, arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 24.09.2010 neenu