Regular Second Appeal No. 1232 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1232 of 2011(O&M) Date of decision : March 14, 2011 Smt. Nindra Goyal and others ....Appellants versus Shimla Devi and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Suvineet Sharma, Advocate, for the appellants L.N. Mittal, J. (Oral) CM No. 3425.C of 2011 This is application for impleading legal representatives of plaintiff Ram Murti and defendants no. 1 and 5. It is alleged that the plaintiff has left behind nine legal heirs detailed in paragraph 2 of the application whereas defendants no. 1 and 5 have left behind 3 and 4 legal heirs respectively as separately mentioned in paragraph 3 of the application. The application is accompanied by affidavit. Accordingly, the application is allowed subject to all just exceptions and persons mentioned in paragraph 2 of the application are ordered to be brought on record as legal Regular Second Appeal No. 1232 of 2011(O&M) -2- representatives of plaintiff Ram Murti since deceased whereas persons separately mentioned in paragraph 3 of the application are ordered to be brought on record as legal representatives of defendants no. 1 and 5 i.e. Amarjeet Gupta and OP Goyal respectively for the purpose of this appeal. RSA No. 1232 of 2011 This is second appeal by some of the legal heirs of plaintiff Ram Murti since deceased, having failed in both the courts below. Plaintiff filed suit for separate possession of his share by partition of the suit house and for permanent injunction restraining the defendants from alienating specific portion of the suit house. The plaintiff alleged that partes are joint owners in possession of the suit house. The plaintiff claimed 1/4th share in the suit house. Defendants no. 1 to 4 and 7 contested the suit and inter alia, pleaded that parties to the suit are in separate possession of their respective portions for the last more than 70 years on the basis of oral partition, except one shop which is still jointly owned by the parties but is in possession of the plaintiff only. The suit property has already been partitioned. It was also pleaded that the suit is bad for partial partition as the entire property owned by the parties has not been included in the suit. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 25.1.2007 dismissed the suit being bad for partial partition and also holding that the defendants have failed to prove oral partition set up by them. First appeal preferred by the plaintiff Regular Second Appeal No. 1232 of 2011(O&M) -3- has been dismissed by learned Additional District Judge (Fast Track Court), Fatehgarh Sahib vide judgment and decree dated 28.4.2009. Feeling aggrieved, some of the legal heirs of the plaintiff have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that other property for which the suit has been held to be bad for partial partition is situated in the same village as well as in another village and the suit cannot be said to be bad for partial partition. The contention cannot be accepted. The plaintiff's special attorney Narinder Kumar PW5 admitted in cross- examination that there is shop in front of the suit property which is in possession of Ravinder Kumar and there is also joint property at village Talania which consists of three shops and residential house. The said properties are also joint and have not been included in the suit. It is, thus, manifest that the suit is bad for partial partition. Concurrent finding recorded by both the courts below to this effect does not suffer from any infirmity much less illegality or perversity because plaintiff's special attorney while appearing as witness virtually admitted that the suit is bad for partial partition. Consequently, no question of law arises for determination in this second appeal. The finding recorded by the courts below does not warrant interference in exercise of second appellate jurisdiction as the said finding is based on plaintiff's own evidence in addition to the evidence of the defendants. The said finding is not shown to be perverse or illegal in Regular Second Appeal No. 1232 of 2011(O&M) -4- any manner and is not based on misreading or misappreciation of evidence. The appeal lacks any merit and is accordingly dismissed in limine. ( L.N. Mittal ) March 14, 2011 Judge 'dalbir'