R.S.A. No. 2812 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2812 of 2008 (O&M) Date of decision: 03.02.2009 Ajaib Singh ....Appellant Versus Teja Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. A.S. Jattana, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 16.8.2007 and 12.8.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for partition stands decreed. It is not in dispute that the parties being brothers were entitled to inherit half share each of the property of their mother. The suit was contested by the defendant/appellant on the plea that there was a family settlement during the lifetime of their mother, and property stood divided. The learned Courts below have recorded a concurrent finding of fact that the appellant/defendant failed to prove or produce on record any family settlement. The plea that the family settlement said to have R.S.A. No. 2812 of 2008 (O&M) -2- been entered into in the presence of Gurmukh Singh, was not supported by him while appearing as witness. The suit was also contested on the plea that the parties, had already sold their repective shares to Charan Singh by way of different agreements to sell. Those agreements were placed and proved and stood exhibited. Though the learned Courts below rejected the stand of sale on the ground that sale of immovable property of more than Rs.100/-, cannot be by way of unregistered document. However, it may be noticed that, in fact, no sale deed was executed and it was merely an agreement to sell. The parties i.e. appellant/defendant and respondent/plaintiff continued to be owners of the property in dispute in equal shares. The learned Courts below rightly decreed the suit for partition by passing a preliminary decree. The learned counsel for the appellant contends that the learned Courts below have not applied their judicial mind in coming to the conclusion that as the agreement to sell being for more than Rs.100/-, had to be by way of registered document. The decree impugned, therefore, cannot be sustained. It is also the contention of the learned counsel for the appellant that Charan Singh has filed a suit for specific performance on the basis of agreement to sell and, therefore, the judgments and decree passed by the learned Courts deserve to be reversed. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. The learned Courts below are right in holding that the parties are still recorded as owners of R.S.A. No. 2812 of 2008 (O&M) -3- half share each and, therefore, there was no bar to the plaintiff to seek partition of joint property. The filing of suit for specific performance does not come in way of decree as it is the independent right of the intending vendee to enforce an agreement to sell. The filing of suit for specific performance by Charan Singh shows that the parties are still owners and the plea raised is misconceived. The appeal raises no substantial question of law. No merit. Dismissed. (Vinod K. Sharma) Judge February 03, 2009 R.S.