R.S.A.No. 1601 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1601 of 1998 Date of decision: 17.8.2009 Kaka Singh ......Appellant Versus Sampuran Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arun Palli, Sr.Advocate with Mr.Tanwar Goel, Advocate, for the appellants. Mr.G.S.Bhatia, Advocate, for the respondents. **** SABINA, J. Plaintiff Kaka Singh filed a suit for separate possession by way of partition, which was dismissed by the Civil Judge (Jr.Divn.) Khanna vide judgment and decree dated 6.9.1996. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ludhiana vide judgment and decree dated 15.10.1997. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- R.S.A.No. 1601 of 1998 2 “2. Appellant filed the suit for separate possession by way of partition of land measuring 1B-13B as detailed in the head note of the plaint on the averments that the property is jointly owned by the parties and plaintiff has 5/24th share in Khasra No.285 and 15/26th share in Khara No.284. Plaintiff and defendant No.1 have built their houses in a part of the property where they have been residing. It is pleaded that defendant No.1 has constructed a wall as to block the passage which leads to the house of the plaintiff. He has no right to encroach upon the passage. Defendants were requested to partition the property by meets and bounds as per their share. 3. Respondents/defendants No.1 to 5 contested the suit and filed written statement pleading that the suit property was partitioned in the year 1952 and parties are in possession of specific portion out of the property in suit. That parties purchased and sold land out of the suit property which fell to their share. That defendant No. 6 to 9 have no right or interest in the suit property. It is further pleaded that first suit of the plaintiff was dismissed as withdrawn on 24.4.86. Plaintiff filed the second suit which was dismissed as withdrawn on 23.10.1989 with permission to file a fresh suit on the same cause of R.S.A.No. 1601 of 1998 3 action. The present suit being the third suit is not maintainable. Further objections that plaintiff has no locus standi to file the present suit, suit is not properly valued for the purpose of court fee and jurisdiction and is bad for mis joinder and non joinder of parties were also taken.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the suit property is joint of the parties? OPP 2. If issue No.1 proved, whether the plaintiff has got a right to possess his share by way of partition ? OPP 3. Whether the suit of the plaintiff not maintainable? OPD 4. Whether the plaintiff has got no locus standi to file the suit? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 6. Whether the suit is bad for mis-joinder of parties? If so, its effect ?OPD 7. Whether the suit is barred by time? OPD 8. Whether the suit is frivolous to the knowledge of the plaintiff? If so, its effect? OPD 9. Relief. ” R.S.A.No. 1601 of 1998 4 Learned senior counsel for the appellant has submitted that the Courts below had erred in dismissing the suit of the plaintiff. The plaintiff had earlier filed a suit for partition and the same was dismissed as withdrawn with permission to file a fresh one on the same cause of action. However, the Courts below had erred in dismissing the suit of the plaintiff on the ground that initially the suit filed by the plaintiff was got dismissed as withdrawn without seeking any permission to file a fresh one. Learned counsel for the respondents has argued that the parties had already partitioned their land and had raised construction over the suit property. The suit in question had been filed merely because some building material had been collected by the respondents to raise further construction. The plaintiff apprehended that the passage might be obstructed by the respondents. Learned counsel has further submitted at the bar that the respondents would not raise any construction in the passage in dispute. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. In the present case, the plaintiff had initially filed a suit for partition in the year 1984 and the same was dismissed as withdrawn on 24.4.1986, Ex.DW-3/4, without any permission to file a fresh one on the same cause of action. Thereafter, the plaintiff filed another suit in the year 1986 for partition and the same was dismissed as withdrawn with permission to file a fresh one on the same cause of R.S.A.No. 1601 of 1998 5 action by Sub Judge, Ist Class, Khanna vide order dated 23.10.1989 , Ex.P-1. The present suit is a third one filed by the plaintiff for partition. The plaintiff, while appearing in the witness box as PW-1 in his cross-examination, has deposed that he has constructed residential house in separate portion of khasra Nos.284 and 285. The plaintiff further admitted in his cross-examination that Ex.D-1 was signed by him and was scribed by deed writer Rajinder Pal Sood. However, he averred that the said compromise was not read over to him. He also showed his ignorance with regard to the presence of the witnesses at the spot. He admitted that Sampuran Singh and Avtar Singh were present at that time. His signatures were also entered in the register maintained by the scribe. Although the compromise/partition deed Ex.D-1 dated 22.3.1986 is not a registered document yet the same reveals that the property in dispute has been duly partitioned between the parties as execution of the said document has been duly admitted by the plaintiff. Apparently, due to this reason the plaintiff withdrew the suit which he had filed at the first instance seeking partition as the property in dispute had already been partitioned between the parties. It is also admitted by the plaintiff that he has raised construction of his house in the suit property. It is also the case of the defendants that the parties have constructed their residential houses in the property in dispute. This shows that there remained no lis between the parties as they had partitioned the property. Although the partition deed is R.S.A.No. 1601 of 1998 6 not a registered document and is inadmissible in evidence yet it can be considered for collateral purposes. Since there was no lis between the parties, the suit of the plaintiff was not maintainable. Hence, the finding of the trial Court on issue No.1 was unnecessary. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. However, the respondents would be bound by the statement made by their counsel to the effect that they will not block the passage existing in the suit property. (SABINA) JUDGE August 17, 2009 anita