RSA No.3686 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3686 of 2009 (O&M) Date of Decision: 24.2.2010 Harminder Singh and others .... Appellants. Versus Harbhajan Singh and others ..... Respondents. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.G.P.Vashishth, Advocate for the appellants. RAKESH KUMAR JAIN J. The plaintiffs are in second appeal against the judgment and decree of both the Courts below whereby their suit for declaration that they are owners in possession of land measuring 34 Bighas 9 Biswas with defendant No.4 as per jamabandi for the year 1998-99 situated in the revenue record of village Jaipura, Tehsil Payal, District Ludhiana and for consequential relief of injunction restraining defendants No.1 to 3 from interfering in their possession over the suit land has been dismissed. Basically, the plaintiff had taken a plea of being in exclusive possession by way of oral family settlement. Learned Courts below have found that neither the plaintiffs have given exact date nor examined any witness to prove family settlement. Even in the jamabandi (Ex.P1) defendants No.1 to 3 along with Gurbachan Singh are recorded as co- sharers in the property in dispute, which is followed in jamabandis for the year 1993-94 (Ex.P2) and 1998-99 (Ex.P3). RSA No.3686 of 2009 (O&M) -2- Khasra Girdawari (Ex.P4) also shows defendants No.1 to 3 and Gurbachan Singh as co-owners in joint possession. It has been found by the Courts below that though in the Khasra Girdawaris, they are shown as co- sharers in separate possession but until and unless the property in dispute is partitioned by metes and bounds, it cannot be treated to have been partitioned. The learned Court below has also referred to an earlier litigation between the parties in Civil Suit No.3 of 4.1.1996 decided on 30.7.1999 titled as Harbhajan Singh and others Vs. Gurbachan Singh decided by Civil Judge (Jr.Division), Khanna of which judgment (Ex.D2) and decree sheet (Ex.D3) are on record against which an appeal was also dismissed by the then Additional District Judge, Ludhiana vide his judgment dated 19.8.2000 (Ex.D4) in which it has been held that property in dispute is joint and was not partitioned so far. Thus, taking into account the documentary evidence on record from which it transpires that there has not been any partition on the basis of which declaration sought by the plaintiff could be granted to them, the suit is dismissed by the Courts below. It was also held that possession of a joint property by one co-owner of his share or even of the entire, does not necessarily amount to ouster of all the other co-owners as possession of one co-sharer is deemed to be possession on behalf of other co-sharers. Counsel for the appellants was at pains to argue and convince this Court that there has been an oral partition but he could not refer to any evidence which could tilt the case in his favour by negating the findings of fact recorded by the Courts below on the basis of documentary evidence, which included previous litigation in respect of the property in dispute in which it has been held that property in dispute has not been partitioned. RSA No.3686 of 2009 (O&M) -3- No other point has been raised before the Court. Thus, I do not find any question much less substantial involved to warrant interference of the findings of fact recorded by the Courts below. The present appeal is thus, dismissed in limine without any order as to costs. (RAKESH KUMAR JAIN) 24.2.2010 JUDGE Meenu