IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.216 of 2009 Date of decision: 5.3.2009 Barjinder Singh … Appellant. Versus. Joginder Singh and another … Respondents. CORAM: THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. V.K.Jain, Sr. Advocate, with Mr. Prashant Vashisth, Advocate, for the appellant. … ARVIND KUMAR, J: The present appellant, Barjinder Singh, was the defendant No.1 in the suit for separate possession by way of partition of the suit land preferred by plaintiff, Joginder Singh. Plaintiff, Joginder Singh, in his suit pleaded that vide registered sale-deed dated 28.10.1969,(Ex.P-2) the suit property had been purchased by him as well as defendants 1 and 2, namely, Barjinder Singh and Ravinder Singh, and since then they are in separate possession thereof. The parties to the suit are real brothers. Thereafter, the plaintiff asked the defendants to partition the same but the defendants did not pay any heed and this led to filing of present suit by him claiming the afore-said relief. Upon notice of the suit, defendant No.2, Ravinder Singh chose not to appear and was accordingly proceeded against ex parte. Defendant No.1, Barjinder Singh, in his written statement disputed the ownership of the plaintiff and defendant No.2 over the suit property and took up the stand that the suit property was purchased by him from his independent income and that neither plaintiff nor defendant No.2 contributed anything towards the sale consideration and the plaintiff and defendant No.2 are Benamidars and that their names were inserted in the sale-deed at the instance of father of the parties. RSA No.216 of 2009 -2- Trial Court on appreciation of evidence adduced by the parties, vide judgment and decree dated 15.2.2007 decreed the suit of the plaintiff and passed a preliminary decree thereby declaring shares of the parties to the suit as 1/3rd each. Feeling aggrieved therefrom, defendant No.1 preferred an appeal before the first appellate Court. During the pendency of the said appeal, defendant filed an application under Order 41 rule 27 CPC for leading additional evidence, alleging therein that since as per photo-copy of the sale-deed produced on record by the plaintiff, no details about the measurement and dimension of the suit property were available and only a site plan was placed on record showing the measurement of the suit property, he had moved an application before the trial Court for appointment of Local Commissioner for bringing on record the exact dimensions thereof but that application was dismissed by the trial Court and therefore, he(defendant No.1) was filing the present application under Order 41 rule 27 Code of Civil Procedure. The said application came to be rejected by the first appellate Court as it did not feel the necessity to appoint a Local Commissioner to ascertain the location of the disputed property. It was observed that since the present suit itself was only for possession by way of partition, a Local Commissioner would consequently visit the suit property to suggest the mode of partition. It was further observed that there was no dispute about the location and boundaries of the original plot over which the suit property was situated. The first appellate Court after going through the judgment and decree of the trial Court and considering the evidence brought on record by the parties, dismissed the appeal of defendant No.1 vide judgment and decree dated 27.11.2008. Hence, the present appeal by the defendant. Both the Courts below on appreciation of evidence adduced on record, have concurrently found that defendant No.1 has not been able to prove the plea of Benamidar qua plaiintiff and defendant No.2. It has been observed that merely because there is an endorsement at the back of first page of sale-deed, Exhibit P-1, showing defendant No.1 to be present at the time of execution of sale-deed, will not in any manner mean that he had acquired sole ownership qua the said property by virtue of the said sale-deed; rather in view of the said sale-deed, the suit property had been purchased in the names of plaintiff, defendant No.1 as well as defendant No.2, being real brothers. Except his bald statement as DW-1 stating therein that he had RSA No.216 of 2009 -3- solely contributed towards the entire sale consideration of the sale-deed, Exhibit P-1, no document worth the name has been placed on record by the defendant No.1 to substantiating as to from which sources he had contributed towards the sale-consideration. The Courts below also negatived the plea of defendant No.1 that plaintiff was required to affix ad valorem court-fee and concurrently held that by virtue of sale-deed, Exhibit D-1, plaintiff along with his two brothers, i.e. defendants 1 and 2, had acquired ownership of the suit property in equal share and thus, being a co-sharer, the plaintiff is not liable to affix any ad valorem court-fee on the suit. In this context, reference has been made to various pronouncements of this Court. Thus, the Courts below have rightly held that the plaintiff being a co-sharer, is entitled to seek separate possession of his share in the suit property by way of partition. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed. March 5, 2009 ( ARVIND KUMAR) JS JUDGE