IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1751 of 2006 Date of Decision : 30 th May, 2011 Gurmail Singh & another ….Appellants Versus Pakhar Singh ….Respondent CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT : Mr. Avinash Mittal, Advocate for the appellants. * * * * * L. N. Mittal, J. (Oral) Defendants Gurmail Singh and Narinder Kumar Shashtri having remained unsuccessful in both the courts below have filed the instant second appeal. Respondent plaintiff Pakhar Singh filed suit against defendants/appellants. Plaintiff and defendant No.1 are real brothers being sons of Bhag Singh. Plaintiff’s case is that their father Bhag Singh inherited 1/6th share in 52 Bighas 6 Biswas land owned by Bhag Singh’s father Kirpa. Bhag Singh out of his said share sold 1 Bigha 5 Biswas land to Amandeep Colony. A chemical company also acquired 16 Biswas land. The share of Bhag Singh was inherited by plaintiff, defendant No.1 and their mother Chhoto and four sisters. On death of Chhoto, her share was also inherited by plaintiff and defendant No.1. The plaintiff alleged that defendant No.1 RSA No.1751 of 2006 was trying to sell land in excess of his share and also intended to sell the land of specific khasra numbers which is more valuable, to defendant No.2. Plaintiff sought injunction against said act of the defendants along with injunction restraining the defendants from changing the nature of the suit land and other ancillary relief. Defendants admitted relationship of plaintiff and defendant No.1. However, defendants pleaded that there was family partition vide agreement dated 04.04.1986 among plaintiff and defendant No.1 and his two brothers and mother and accordingly each of them became owner in possession of separate parcels out of the share of Bhag Singh and they have been selling their land accordingly. In the same manner, defendant No.1 has sold specific land to defendant No.2 vide sale deed dated 05.02.2001, which is legal and valid. Various other pleas were also raised. Learned Civil Judge (Junior Division), Rajpura vide judgment and decree dated 13.05.2002 decreed the plaintiff’s suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 06.02.2006. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. It is undisputed that plaintiff and defendant No.1 and other legal heirs of Bhag Singh inherited the share of Bhag Singh in the joint land. However, defendants’ case is that the share of Bhag Singh was partitioned among his legal heirs vide agreement dated 04.04.1986 Exhibit -2- RSA No.1751 of 2006 D-1 and accordingly defendant No.1 was exclusive owner in possession of the land which fell to his share and he rightly sold the same to defendant No.2 vide sale deed dated 05.02.2001. The aforesaid contention cannot be accepted. At the outset, it has to be noticed that the suit was filed on 03.02.2001 and therefore sale deed dated 05.02.2001 Exhibit D-2 executed by defendant No.1 in favour of defendant No.2 is hit by the doctrine of lis pendens. As regards partition vide agreement dated 04.04.1986, firstly the said agreement is not registered although being instrument of partition whereby immoveable property was partitioned along with some compensation amount regarding death of Bhag Singh, the said agreement required compulsory registration. Secondly except the houses in separate possession of each cosharer which were to continue as such pursuant to this agreement, the land which is the bone of contention in the instant suit was allegedly partitioned in equal shares, but it has not been mentioned in the agreement as to which particular land fell to the share of which co-sharer. In other words, from this document, it cannot be said that defendant No.1 by way of this agreement became owner of the land which he has sold to defendant No.2 vide sale deed dated 05.02.2001 Exhibit D-2. Thirdly, the agreement recited that the co-sharers will get mutation sanctioned regarding the land falling to the each co-sharer. If any such mutation had been got sanctioned, the same would have amounted to partition of the joint land and the mutation would also have depicted as to which land fell to the share of each co-sharer. However, admittedly no mutation was sanctioned pursuant -3- RSA No.1751 of 2006 to the said agreement till the filing of the suit, which was filed almost 15 years after the partition agreement. It would also depict that partition agreement was never given effect to and was not acted upon. Learned counsel for the appellants vehemently contended that plaintiff himself sold some land of specific khasra numbers depicting mutual partition among the co-sharers. This contention cannot be accepted. As noticed hereinbefore, there is no material on record to depict as to which particular land fell to the share of which co-sharer. In the absence thereof, the so-called partition cannot be accepted or given effect to. Secondly, sale of specific khasra numbers by a co-sharer would also amount to sale of share in joint land and would be subject to partition, as held by Full Bench of this Court in Bhartu Versus Ram Sarup, 1981 PLJ 204. For the reasons aforesaid, I have no hesitation in holding that the defendants have miserably failed to prove the alleged partition. Consequently suit of the plaintiff has been rightly decreed by the courts below. Judgments of the courts below, therefore, do not suffer from any illegality or perversity nor the same are based on misreading or misappreciation of evidence. Consequently the said finding does not call for interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 30th May, 2011 -4- RSA No.1751 of 2006 ‘raj’ -5-