Regular Second Appeal No.2378 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2378 of 2008 Date of decision: 06.07.2009 1. Indra widow of Gorakh Singh, 2. Amarinder Singh, 3. Deepmala and 4. Monika minor son/ daughters of Gorakh Singh, under the guardianship of Indra mother herself, residents of Goria Wala Muhalla, Sunam District Sangrur. ..... Appellants. Versus 1. Balraj Singh, 2. Devraj Singh sons of Amarjit Singh, 3. Subhandra Rani, daughter of Amarjit Singh, 4. Charan Kaur widow of Amarjit Singh, 5. Narinder, 6. Suresh sons of Ranjit Singh, 7. Vinod Kumari daughter of Ranjit Singh, 8. Nirmla widow of Surinder Singh, 9. Robin, 10. Deepika, and 11. Gagan minor son/ daughters of Surinder Singh son of Ranjit Singh, under the guardianship of Nirmla mother herself, residents of Goria Wala Muhalla, Sunam, District Sangrur. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Manish Kumar Singla, Advocate for the appellants. Sham Sunder, J. This is an appeal filed by the unsuccessful plaintiffs (now appellants) for Regular Second Appeal No.2378 of 2008 2 setting aside the judgment and decree dated 27.05.2004, rendered by the Court of Additional Civil Judge (Senior Division), Sunam and the judgment and decree dated 08.12.2007 rendered by the Court of Additional Sessions Judge (A) FTC, Sangrur, in appeal, vide which their suit for declaration and permanent injunction was dismissed. 2. Shorn off unnecessary details, the relevant facts of the case, are that the plaintiffs (now appellants) claimed themselves to be the owners to the extent of ½ share, in the land measuring 19 Kanals 13 Marlas, as fully described in the head note of the plaint. It was stated that the suit land had not been partitioned, and mutation No. 7663 had not been acted upon. It was further stated that, in the suit land, measuring 19 Kanals 13 Marlas, Gorakh Singh and Bhan Kaur were the co-sharers to the extent of ½ share. Both of whom died. It was further stated that the property, standing in their names had been mutated and as per jamabandi for the year 1984-85, the plaintiffs became the owners of the same. It was further stated that the defendants had got one mutation bearing no. 7663 incorporated in the Regular Second Appeal No.2378 of 2008 3 revenue record showing that the said land had been partitioned. It was further stated that the mutation was illegal. It was further stated that the defendants wanted to alienate the land, in dispute, by taking the shelter of the alleged partition of the land, in question. They were requested so many times, not to do so, but to no avail. On their final refusal to admit the claim of the plaintiffs, left with no alternative, a suit for declaration and permanent injunction was filed. 3. Defendant nos. 1,2,3,6,7,8,9 and 10 put in appearance, and contested the suit by way of filing their joint written statement. They pleaded therein that the plaintiffs had no locus standi to file the suit. It was further pleaded that no cause of action arose in favour of the plaintiffs, to file the suit. It was further pleaded that the suit was not maintainable. It was further stated that Gorakh Nath and Bhan Kaur as well as Amarjit Singh and Ranjit Singh effected partition of the suit land during their life time, regarding which mutation no. 7663 was entered in the revenue record. It was further stated that since the land in dispute was partitioned amongst the co-sharers, Regular Second Appeal No.2378 of 2008 4 mutation no. 7663 was correctly entered in the revenue record. It was further stated that the parties were in separate possession of their shares, which fell to their lot in the partition and were no more co-sharers. It was further stated that after the partition, the land in dispute never remained joint. It was further stated that since the defendants were the owners of the property, in dispute, they had every right to alienate the same. 4. The remaining defendants were not present despite service as is evident from the record and they were accordingly proceeded against ex-parte. 5. From the pleadings of the parties, the following issues were framed by the trial Court on 15.04.2002:- “1- Whether mutation of partition no.7663 is wrong and has no effect on the right of the plaintiffs and is liable to be set aside?OPP 2- Whether plaintiffs are owners in possession of a co-sharers in the suit land ?OPP Regular Second Appeal No.2378 of 2008 5 3- Whether plaintiffs are owners entitled to permanent injunction as prayed for ?OPP 4- Whether suit is not maintainable in present form ?OPD 5- Whether plaintiffs have no cause of action and locus standi to file the present suit ?OPD 6- Whether suit is within limitation ?OPD 7- Whether plaintiffs are estopped from filing the present suit, by their own act and conduct ?OPD 8- Whether this Court has no jurisdiction to try and decide the present suit ?OPD 9- Whether plaintiffs have not come to the Court with clean hands and suppressed the real facts from the Court, if so its effect ?OPD 10- Relief.” 6. The parties led evidence in support of their case. 7. The trial Court after hearing the Counsel for the parties,and on going through the evidence and record of the case, decided issue nos.1,2,3 and 6 against the plaintiffs and in Regular Second Appeal No.2378 of 2008 6 favour of the defendants, whereas issue nos. 4,5,7, 8 and 9 were not pressed by the defendants. Ultimately, the trial Court dismissed the suit. 8. Feeling aggrieved against the judgment and decree dated 27.05.2004, passed by the trial Court, the appellants filed an appeal before the Appellate Court at Sangrur, which vide its judgment and decree dated 08.12.2007 dismissed the same. 9. Still feeling dis-satisfied, the instant Regular Second Appeal has been filed by the appellants. 10. I have heard the Counsel for the appellants, and have gone through and perused the documents on record carefully. 11. The Counsel for the appellants submitted that the land, in dispute, was joint and was never partitioned. He further submitted that mutation No. 7663, with regard to private partition of the land, in dispute, by the co-sharers, was wrongly entered in the revenue record. He further submitted that since the land, in dispute, was joint amongst the parties, the plaintiffs were owners therein, to the extent of ½ share. He Regular Second Appeal No.2378 of 2008 7 further submitted that the trial Court was wrong in coming to the conclusion that the land in dispute had been orally partitioned and implementation thereof was made in the revenue record, vide the mutation aforesaid. He further submitted that the judgments of the Courts below dismissing the suit of the plaintiffs were, thus, illegal and liable to be set aside. 12. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellants, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. No doubt earlier the land, in dispute, was joint amongst various co-sharers including plaintiffs (now appellants) and the defendants. The oral partition in respect of the land, in dispute, as is evident from the record, was effected. The said oral private partition was duly brought to the notice of the Revenue Authorities and rapat no. 133 dated 20.11.1990 was entered in the Rojnamcha in this respect. The said partition, was duly approved by the Tehsildar on 23.11.1990 and mutation to this effect bearing no. 7663/D was ordered to be Regular Second Appeal No.2378 of 2008 8 entered in the revenue record. According to the provisions of law, agricultural land can be partitioned either by moving a petition for partition before the competent Revenue Court or partition of the same can be effected privately by the co-sharers but report in respect of such private partition, is required to be made to the Revenue Authorities, so that necessary incorporation of the same in the revenue record could be made. In this case, the private partition which was effected amongst the co-shares, was duly incorporated, in the rojnamcha, as also in the Revenue Record by way of mutation, referred to above. The private partition was, thus, duly implemented and the co-sharers were put in possession of the land, fell to their lot, in such partition. Under these circumstances, it did not lie, in the mouth of the plaintiffs that, at the time of filing the suit, the land in dispute was still joint. Not only this, earlier a civil suit was filed by Kamlawati for permanent injunction, in which issue no.2 was framed to the effect, as to whether, suit land alongwith other land was still joint amongst the parties. However, the Civil Regular Second Appeal No.2378 of 2008 9 Court decided that issue against the contestant defendant of that suit (plaintiffs in this suit ) vide the earlier judgment and decree dated 20.12.2001. It was also held that the suit land was not joint. In this view of the matter, in my opinion, the concurrent findings of fact, recorded by the Courts below that the plaintiffs were not the co-sharers in the land, in dispute, as the same had already been partitioned; such partition was duly approved by the Revenue Authorities,incorporated in the revenue record, and stood duly implemented and as such, they were not entitled to the declaration and permanent injunction are correct. The judgments and the decrees, of the Courts below, are based on the correct appreciation of evidence, and, thus, do not suffer from any illegality or perversity. Thus, the same do not call for any interference. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. In view of the above, finding no merit in the appeal, the same stands dismissed. ( Sham Sunder ) July 06, 2009 Judge dinesh