Regular Second Appeal No. 342 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 342 of 2011(O&M) Date of decision : January 21, 2011 Bhoop Singh ....Appellant versus Kurda Ram and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Mahavir Sandhu, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 944.C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 70 days in refiling the appeal is condoned. RSA No. 342 of 2011 Bhoop Singh plaintiff having failed in both the courts below is in second appeal. Appellant-plaintiff filed suit against his brothers Kurda Ram and Ram Singh defendants-respondents for separate possession of 1/3rd share by partition of suit property comprised of killa no. 10/7(0-2), khasra no. 75(2-18) and property depicted by letters ABC in the site plan alleging that parties are co-owners in joint possession of the suit property whereas one old haveli has already been partitioned among the parties. It is pleaded Regular Second Appeal No. 342 of 2011(O&M) -2- that plaintiff and both defendants have 1/3rd share each in the suit property. Defendant no. 1, inter alia, pleaded that oral partition on the basis of mutual family settlement was effected on 22.5.1988 between the parties. They are bound by the same. The said mutual partition was also incorporated in writing dated 9.4.2000 which was acknowledged by the parties in the presence of the witnesses. The said partition was acted upon in the year 1988 itself and since then the parties are in exclusive possession of their respective portions and have also raised pucca houses on their portions. The suit is also alleged to be bad for partial partition. It was denied that suit property is joint property of the parties or that they are in joint possession thereof. Haveli had also been partitioned. Defendant no. 2 got haveli but he had to pay ` 27,333/- each to plaintiff and defendant no. 1 qua their 1/3rd share each which has not been paid. Defendant no. 2 also contested the suit. It was pleaded that measurements of the suit property have not been mentioned in the site plan. It was denied that old haveli had already been partitioned. It was pleaded that defendant no. 1 is in possession of land out of khasra no. 75 in excess of his 1/3rd share. Various other pleas were also raised. Plaint averments were broadly controverted. Learned Civil Judge (Junior Division), Rewari vide judgment and decree dated 19.2.2008 dismissed the plaintiff's suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 18.5.2010. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the Regular Second Appeal No. 342 of 2011(O&M) -3- case file. Learned counsel for the appellant vehemently contended that mutual family settlement or partition which was effected between the parties was never implemented and therefore, the suit property is required to be partitioned. The contention cannot be accepted being beyond pleadings. The plaintiff did not even plead that mutual family settlement or partition was not implemented or acted upon. On the contrary, plaintiff's own evidence proved beyond doubt that family partition effected between the parties was implemented and parties are in possession of their respective portions as per said partition. Ram Otar PW1 admitted in cross- examination that all the three brothers (parties) had partitioned their joint property in the year 1988 and they had constructed their respective houses on their respective portions. He also admitted that defendant no. 2 has reconstructed his house on his share in khasra no. 75. This witness also admitted that plaintiff has also his house on another plot adjoining old haveli. Similarly Jagan Lal PW2 admitted that parties had entered into mutual family settlement for partition of their properties and they are in possession of their respective portions since the year 1988. He also stated that plaintiff Bhoop Singh has himself constructed his house in the year 1996-97 in land of khasra no. 75 and since then he is occupying the same. Jhandumal PW3 also stated in his cross-examination that all the three parties i.e. the plaintiff and both the defendants are residing separately for the last 13 years in their respective houses constructed on their respective portions as per oral family settlement among them. He admitted Regular Second Appeal No. 342 of 2011(O&M) -4- that all the joint properties of the parties have been partitioned mutually by agreement. The plaintiff himself while appearing in the witness box also admitted settlement dated 22.5.1988 and also written settlement dated 9.4.2000. From the aforesaid evidence of the plaintiff himself it becomes manifest that all joint properties of the parties have already been partitioned mutually. The plaintiff also admitted mutual settlement vide writing dated 9.4.2000. The said writing was executed after the institution of the present suit. Inspite thereof, the plaintiff continued to pursue the instant suit which is sheer abuse of process of the court. Writing dated 9.4.2000 also reveals that parties have partitioned their properties mutually. Parties are admittedly in separate possession of their respective portions since mutual partition effected in the year 1988. Consequently, the instant suit for partition is completely misconceived and devoid of merit because the joint properties of the parties already stand partitioned. There is another aspect of the matter. If it is assumed that there has not been any partition between the parties then plaintiff has not included haveli in the instant suit. Haveli was also joint property of the parties. Consequently, in that event the suit would be bad for partial partition. I may hasten to add that mutual partition has already been effected between the parties qua all their joint properties. There is concurrent finding by both the courts below against the plaintiff-appellant. The said finding is based on proper appreciation of Regular Second Appeal No. 342 of 2011(O&M) -5- evidence and is supported by cogent reasons. The plaintiff and his witnesses have themselves admitted mutual partition and implementation thereof since the year 1988. There is, therefore, no infirmity much less illegality or perversity in the impugned judgments of the courts below so as to warrant interference in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine being devoid of any merit. ( L.N. Mittal ) January 21, 2011 Judge 'dalbir'