R.S.A. No. 96 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 96 of 2010 (O&M) Date of decision : 23.7.2010 ... Gurminder Singh and others ................Appellants vs. Balbir Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. K.S. Dhillon, Advocate for the appellants ... K.C. Puri, J. There is a delay of 13 days in filing the present appeal. The same stands condoned on the grounds mentioned in the application. This is an appeal directed by some of the defendants – appellants, against the judgment dated 14.5.2009 passed by Sh. H.S. Dhaliwal, Additional District Judge, Tarn Taran (wrongly mentioned as Amritsar), vide which the appeal preferred by defendant-appellants against the judgment dated 10.6.2008, passed by Sh. Deepak Kumar Choudhary, Civil Judge (Junior Division), Tarn Taran, was dismissed. Briefly stated, that case of the plaintiffs, now respondents, is that plaintiffs are co-sharers in possession of the suit land which falls R.S.A. No. 96 of 2010 -2- in the Abadi Deh of village Khadoor Sahib, Tarn Taran. It is pleaded that plaintiffs have constructed their residential houses. Defendants are co-sharers in the suit land. Defendants No. 1 and 2 and the plaintiffs are the owners of ½ share out of total khata of the suit land measuring 9 kanals 4 marlas. Defendants No. 3 and 4 are also owners to the extent of ½ share but Ajit Singh – defendant No. 4 sold land measuring 2 kanals out of total khata to defendants No. 5 and 6, who are the sons of Ajit Singh – defendant No.4. The factum and validity of the said sale deed has been challenged on the ground being sold more than share. Prayer has been made for partition of the land. Defendant filed written statement taking preliminary objection that suit property does not fall in the Abadi Deh and is an agricultural land and the answering defendant has made the payment of land revenue. There are buildings over the suit property in some area; on the basis of quality and quantity more area has been given to defendant No.4 – Ajit Singh. The Civil Court has no jurisdiction. The suit property is agricultural land. The previous judgment dated 21.10.1997 operates as resjudicata. The value of the suit property is Rs.53,22,500/- and court fee of Rs.61,616.50 P. is liable to be affixed on the plaint. Defendant No.4 sold the land in favour of defendants No. 5 and 6 vide sale deed dated 29.11.1996. The total joint land is 324 kanals, which has been partitioned by the revenue officials. The mutation of partition has been sanctioned. Defendants No. 4 to 6 filed separate written statement, taking preliminary objections that defendant No. 3 has expired on 16.5.1998 and as such the suit cannot proceed against a dead person. All other R.S.A. No. 96 of 2010 -3- similar pleas were taken as that taken by other defendants. Replication was filed denying the averments of written statements and affirming the averments of the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to the partition of the land measuring 9 K-4 Marlas fully described in the head note of the plaint? OPP. 2. Whether the suit of the plaintiff is barred by the principle of res-judicata as stated in para No.5 of the preliminary objection of the written statement? OPD-4 3. Whether the Court has got no jurisdiction to try the present suit? OPD 4. Whether the suit of the plaintiff is not valued for the purpose of court fee and jurisdiction ? OPD 5. Whether the suit of the plaintiff is not maintainable as stated in the preliminary objection No.8 of W.S. and same is liable to be dismissed with costs U/S 35-A CPC? OPD 4 to 6. 6. Relief. Plaintiff - Balbir Singh appeared as his own witness as PW- 1 and closed the evidence after tendering certain documents. Defendants examined DW-1 Kulwant Singh, draftsman, DW-2 S.S. Kang, DW-3 Ram Singh, DW-4 Sukhpreet Kaur, hand writing expert, DW-5 Jit Singh, DW-6 Ajaib Singh, DW-7 Joginder Singh, DW-8 Gurminder Singh and closed the evidence. R.S.A. No. 96 of 2010 -4- In rebuttal, plaintiffs examined PW-2 Sukhjinder Singh, hand writing expert. Learned trial Court after appraisal of the evidence, returned the finding on all the issues in favour of the plaintiffs and consequently, decreed the suit of the plaintiffs. Feeling dissatisfied with the above said judgment dated 10.6.2008, passed by Sh. Deepak Kumar Choudhary, Civil Judge (Junior Division), Tarn Taran, the Ist appeal was preferred by the defendant-appellants and the same was decided by Sh. H.S. Dhaliwal, Additional District Judge, Tarn Taran and the said appeal was dismissed vide judgment dated 14.5.2009. Still feeling dissatisfied with the judgments dated 14.5.2009 and 10.6.2008, referred to above, the defendant-appellants have preferred the present regular second appeal. In paragraph No. 16 of the grounds of appeal, the appellants has mentioned that following substantial questions of law are involved in the present appeal:- i) Whether the impugned judgments are perverse, contrary to evidence and based upon misreading/misinterpretation of evidence and law and thus liable to be reversed? ii)Whether the suit of the plaintiffs for partial partition is maintainable? iii)Whether the suit of plaintiffs regarding partition of suit land measuring 9 kanal – 4 marlas out of total joint holding of 324 kanal is not maintainable and liable to be dismissed? iv)Whether the total joint holding between the co-sharers has R.S.A. No. 96 of 2010 -5- already been partitioned? v) Whether the plaintiff has not come to the court with clean hands and suit is liable to be dismissed for misrepresentation of facts and malafide act/conduct of plaintiffs? vi)Whether the court below recorded a totally wrong finding, contrary to evidence that Khasra No. 68/26 (2-0) and 142/16, 17/1 is not required to be part of suit land, especially when it has been proved to be constructed one? vii)Whether jurisdiction of Civil Court is barred? Learned counsel for the appellant has submitted that total joint land is 324 kanals. The present suit has been filed in respect of 9 kanal 4 marlas only out of joint khata. The suit is bad for partial partition. The joint land of 324 kanals has already been partitioned and a such the present suit is not maintainable. Both the Courts below have misread and misrepresented the evidence on the file. The finding of both the Courts below that khasra No. 68/26 (2-0) and 142/16, 17/1, is not required to be part of suit land, is wrong on the face of it. The jurisdiction of the Civil Court is barred. I have carefully considered the said submissions, but do not find any force in these submissions. The questions raised above are not the questions of law, much less the substantial questions of law. All these points raised above are questions of fact. There is concurrent finding of fact by both the Courts below that suit land is Abadi Deh and only Civil Court has the jurisdiction to partition the land. Even according to the R.S.A. No. 96 of 2010 -6- defendants, the other joint land has already been partitioned by the revenue officials. The land of well cannot be partitioned and as such both the Courts below have rightly held that non-inclusion of that land is not fatal for the plaintiffs. The Civil Court only has the jurisdiction and the revenue Court has no jurisdiction to partition the Abadi land. The sale by one co-sharer in excess of his share is meaningless and does not effect the rights of the other co-sharers. If there is construction on the land raised by some of the party, that shall be considered at the time of final partition. In view of these concurrent findings of fact recorded by both the Courts below, no ground for interference is made out. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 23.7.2010 Judge chugh