IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 12/2009 Reserved on: 19.5.2011 Decided on:27.5. 2011 _____________________________________________ Bala Devi. …Appellant. Versus Balak Ram. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Deepak Kaushal, Advocate. For the Respondent : Mr. Ashok Tyagi, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 4.12.2008 passed by the learned Additional District Judge, Sirmaur at Nahan in Civil Appeal No.11- N/13 of 2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit before the learned Civil Judge (Senior Division), Sirmaur at 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Nahan seeking partition of the property, as detailed in para 1 of the plaint, by way of partition and allotment of half share to him. According to him, the suit property was jointly owned and possessed by the parties and he was having half share and the defendant was also having half share. He has purchased half share in the suit property from its previous co-sharer Ram Kumar for a consideration of Rs. 1,10,000/-. The mutation bearing No. 207 was attested in his favour on 16.1.2002. He requested the defendant to get the suit property partitioned mutually and amicably but the defendant kept on avoiding his request. According to him, he being the co-sharer in the suit property is entitled for separation of his share in the suit property by way of partition. 3. The suit was contested by the defendant. It was denied that the plaintiff was in possession of the suit property. It was averred that Niranjan Singh was the exclusive owner of the property, which has been succeeded by the defendant. Plaintiff has no concern with the suit property. The revenue entries showing the plaintiff as co-sharer with the defendant in the suit property are false, wrong and illegal. According to the defendant, she was exclusive owner in possession of the suit property. It was also denied that Ram Kumar or his predecessor Guddi Devi was having title over the suit property. According to 3 her, since Ram Kumar had no title in the suit property as such sale of half share by him on the basis of wrong revenue entries in favour of the plaintiff was illegal and not binding upon the defendant. According to her, the mutation has been attested wrongly. According to the defendant, plaintiff was not related either to Ram Kumar or his father Niranjan Singh. He was completely stranger and as per section 4 of the Partition Act, the access of a stranger purchaser in the dwelling undivided house of the family was to be kept out and since the plaintiff had filed a suit for partition of a dwelling house belonging to undivided family and sought possession of his share, she being member of undivided family and was residing in the dwelling house be permitted to buy the share of the plaintiff on payment of consideration of the sale deed. 4. The replication was filed on behalf of the plaintiff. Averments contained in the plaint were reiterated. Trial court framed issues on 6.5.2003 and 12.9.2006. The suit of the plaintiff was decreed by the trial court on 18.1.2008 and preliminary decree of partition and allotment of half share to the plaintiff in the suit property comprised in Khata/Khatauni No.173/295, Khasra Nos. 1553 to 1556, Kitas-4, measuring 75- 24 square meters situated in Mohalla Govindgarh, Tehsil Nahan, District Sirmaur was passed in favour of the plaintiff. Defendant 4 preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan. He dismissed the same on 4.12.2008. Hence, the present Regular Second Appeal. It was admitted on substantial questions of law No.2 and 5 framed at pages No. 7 and 8 of the paper book. 5. Mr. Deepak Kaushal has strenuously argued that the courts below have not correctly appreciated the plea taken by his client. He then contended that his client was required to be permitted to buy the property under section 4 of the Partition Act. 6. Mr. Ashok Tyagi has supported the judgments of both the courts below. 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff has appeared as PW-1. According to him, Ram Kumar was the previous owner of the suit property. He purchased the suit land from him for a consideration of ` 1,10,000/- through registered sale deed dated 10.10.2001. He has placed on record registered sale deed Ex.P-1. According to 5 him, after the execution of the sale deed Ex.P-1, he possessed the suit land to the extent of half share. According to him, the suit land was joint and that he had become owner of the suit land by virtue of sale deed. He did not know whether Ram Kumar had filed a suit for partition against Smt. Bala Devi. He wanted to get his share separated from the suit land. He has also placed on record copy of Latha Ex.P-3 and jambadi Ex. P-4 for the year 1998-99. 10. PW-2 Ashok Thakur has deposed that he knew the plaintiff. He has further deposed that the sale deed Ex.P-1 was executed in favour of the plaintiff in his presence. He signed the same, as an attesting witness. 11. Defendant has appeared as DW-1. She has led her evidence by way of affidavit Ex.D-1. She has deposed that Pandu was the owner in possession of the suit property and after his death, his son Niranjan Singh became owner of the same. Smt. Guddi was not the daughter of Pandu. Her name in the column of joint ownership with Niranjan Singh in the revenue record was illegal. According to her, the sale of her share made by Smt. Guddi in favour of Ram Kumar was illegal and consequently, the sale made of the share of Ram Kumar in favour of the plaintiff was also illegal and wrong. According to her, mutation No. 207 in favour of plaintiff was also illegal. She 6 further deposed that the entire suit land, which was a dwelling house, was in her possession being its exclusive owner. According to him, Niranjan Singh during his life time bequeathed the same to her by way of will, being the daughter-in-law. 12. The plaintiff has also produced Dharam Singh, Registration Clerk, Nahan, as PW-3 in rebuttal. He has stated that he has brought the requisitioned record qua sale deed No. 134 dated 29.4.1997 executed by Smt. Guddi Devi wife of Shiv Charan in favour of Ram Kumar. He has proved on record copy Ex.PW-3/A. 13. It is evident from the contents of Annexure P-1, sale deed dated 10.10.2001 that the plaintiff has half share in the suit property from Ram Kumar. The mutation was attested in favour of the plaintiff on 16.1.2002 bearing No.207 vide Annexure P-2. It is also evident from the perusal of Ex.PY, i.e. copy of settlement deed that defendant had become owner of the suit property to the extent of half share and the mutation was also attested in her favour to the extent of half share. In Jamabandi for the year 1998-99, Ex.P-4, Ram Kumar has been recorded having half share in the suit property with defendant. The defendant has led no evidence to establish that Ram Kumar was not having any share over the suit property and the entries in the revenue record showing Ram Kumar to be owner of the 7 suit property to the extent of half share were wrong. Defendant has also not placed on record copy of will allegedly executed in her favour by Niranjan Singh. Similarly, defendant has not led any evidence to prove that Niranjan Singh was the exclusive owner of the suit property and Guddi Devi from whom Ram Kumar had purchased half share in the suit property vide sale deed No. 134 dated 29.4.1997, which was later on sold to the plaintiff, was having no share in the suit property. It is also evident from Ex.PX-1, copy of Missal Hakiyat that Niranjan Singh was recorded to be the owner to the extent of half share only whereas Guddi Devi was recorded to be the owner to the extent of half share in the suit property, though the suit property was recorded in possession of Niranjan Singh as co-sharer. 14. The courts below have discussed the plea of adverse possession raised by the defendant. However, defendant has not led any evidence to substantiate the plea of adverse possession raised by him. Defendant has not pleaded or proved on record, the period from which his possession became adverse qua the suit land. It is settled by now that in case of co-sharer, the party claiming adverse possession has to plead and prove on record that he/she was in possession the suit land by way of adverse possession to the complete ouster of the other co-sharers. 8 15. It is admitted case of the parties that the suit property was a dwelling house. Defendant has claimed that she is entitled to purchase the share of the plaintiff being in possession of the suit property. However, while appearing as DW-1, she has categorically stated that she was not ready to purchase the suit land on the basis of market value, as she was having no money to do so. 16. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 27.5. 2011 *awasthi*