RSA No.87 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.87 of 2011 (O&M) Date of Decision: 20 - 7 - 2011 Brijlata ....Appellant v. Mathura Prasad and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Adarsh Jain, Advocate for the appellant. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.289-C of 2011 C.M. is allowed. Exemption is granted from filing certified copy of judgment dated 11.4.2009. In CM No.290-C of 2011 C.M. is allowed. Certified copy of judgment dated 11.4.2009 is taken on record. In CM No.291-C of 2011 C.M. is allowed as prayed for. In CM No.292-C of 2011 For the reasons stated in the application, delay of 125 days in refiling the appeal is condoned. RSA No.87 of 2011 (O&M) [2] C.M. is disposed of. RSA No.87 of 2011 (O&M) The present Regular Second Appeal has been filed by the legal representative of Dallu-defendant to the suit instituted by the plaintiff- respondent Mathura Prasad. Plaintiff-respondent had filed an application praying that final decree be passed on the basis of preliminary decree between the parties about the suit property passed on 2.2.1979 by the Court of Additional District Judge, Gurgaon in appeal. Briefly stated, plaintiff-respondent Mathura Prasad and his brother Dallu were parties to the suit bearing No.75 of 1975/77, decided on 31.5.1977. They owned two residential properties i.e. suit property and one Nohra at Village Katesra, Tehsil Palwal, District Faridabad. Mathura Prasad-plaintiff filed a suit for partition against Dallu in respect of the suit property without including Nohra property. The suit was dismissed by the Sub Judge IIIrd Class, Ballabhgarh on 31.5.1977 on the ground that the same seeks partial partition. Aggrieved against the same, Mathura Prasad filed an appeal. The Court of the then Additional District Judge, Gurgaon in appeal reversed the judgment of the trial Court and passed a decree in favour of the plaintiff. Appellant-defendant challenged the same by filing a Regular Second Appeal in this Court. The same was dismissed on 12.11.1991. After dismissal of the appeal by this Court against the preliminary decree for partition, plaintiff to the suit filed an application for appointment of a Local Commissioner and for issuance of a direction to submit the mode of partition of the suit property as per share of the parties and has also prayed for issuance of a final decree. The present appellant- defendant along with defendant No.4 to the suit raised objections that the RSA No.87 of 2011 (O&M) [3] Court has no jurisdiction to entertain the application and the application is barred by the principle of res judicata and has not furnished the material particulars. The objections filed by the appellant-defendant were dismissed on 25..1.2008 and a Local Commissioner was appointed to assess the mode of partition. The Local Commissioner submitted his report on 10.3.2008, to which objections were filed and it was stated in the objections that the appellant-defendant was absolute owner and the house in question is not jointly possessed by the parties. Reply was filed to the objections filed by the plaintiff-applicant-respondent, in which it was stated that the house can be partitioned either by way of revision or by valuing the property under partition. The Court relied upon the report of the Local Commissioner where the mode of partition was suggested and held as under:- “7......The remaining property of the parties is appreciated to be the common property instead of the joint property. In view of these findings of the learned Appellate Court and the report of the local commissioner and that the present house is occupied by the JD's family. Also keeping in view that it has also specifically been reported that the formation of house in dispute cannot be divided into two parts and its use will become unfit for living purposes, to my mind, the local commissioner has arrived at reasonable and justified mode of partition. The entire property marked by letters ABCD is held to have half share each of property in favour of the parties to the suit. It is also an admitted fact that the constructed portion marked with letters ABLM is half of the entire joint property marked by letters ABCD. Consequently, the objections are over-ruled and the report of local commissioner is hereby accepted and the mode of partition prepared by the local commissioner is made absolute. Final decree be prepared accordingly.” The present appellant-defendant filed an appeal in the lower RSA No.87 of 2011 (O&M) [4] Appellate Court. The lower Appellate Court held that acceptance of Local Commissioner's report and site plan reveal that more valuable share of the house has accrued to the appellant-defendant. Mr.Adarsh Jain, learned counsel appearing for the appellant- defendant has raised two objections. Firstlty, in the judgment and decree dated 2.2.1979 passed by the Additional District Judge, Gurgaon, it has been wrongly held that the plaintiff's suit was for partition of common property. Counsel has submitted that Nohra was a joint coparcenary property. Secondly, it has been submitted that Nohra was also joint between the parties and the plaintiff-decree-holder-respondent was in possession of that Nohra and was residing therein. Therefore, without including the Nohra, the Court had proceeded to pass the final decree in respect of the suit property i.e. the house in possession of the appellant- defendant. I find no merit in these contentions simply because this contention stood rejected by the Additional District Judge, Gurgaon in its judgment dated 2.2.1979, which was affirmed by this Court in the Regular Second Appeal. Counsel for the appellant has failed to formulate any point of law, much less the substantial one, which calls for adjudication. Taking into consideration the totality of circumstances, there is no merit in the present appeal and the same is dismissed. ( KANWALJIT SINGH AHLUWALIA ) July 20, 2011. JUDGE RC