R. S. A. No. 707 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 707 of 2011 Date of Decision : February 09, 2011 Bhim Singh and others .... Appellants Vs. Shri Bhagwan and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rahul Sharma, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs Bhim Singh etc., who have failed in both the courts below. Appellants/plaintiffs filed suit for separate possession by way of partition of plot no.12/4 measuring about 2000 sq. yds. Plaintiffs alleged that Jagram was common ancestor of the parties. At the time of partition of abadi deh of the village, plot nos.234, 238, 11 and 12/4 were allotted to them. However, even since prior to partition, houses existed on plot nos.234 and 238. The said houses were allotted to owners subject to adjustment during partition. The plaintiffs alleged that they have already R. S. A. No. 707 of 2011 2 partitioned plot nos.234, 238 and 11, but plot no.12/4 is still joint. Plaintiffs claimed exclusive possession over 686 sq. yds. area out of this plot, as depicted by red colour in the site plan by letters EFGH, annexed with the plaint. Defendants no.1 to 7 (legal heirs of Banwari) have constructed their house on portion depicted by letters ABGH. The remaining portion is of defendants no.8 to 12. Defendants no.1, 2 and 4 to 7 contested the suit and inter alia pleaded that the suit land has already been partitioned amicably and each branch has got 1080 sq. yds. area vide written settlement dated 10.06.2003. It was denied that the plaintiffs are in possession of any part of plot no.12/4. It was pleaded that plaintiffs want to grab the suit property. It was also alleged that some of the co-sharers including brother of plaintiffs have already sold their shares. Various other pleas were also raised. Defendants no.3 and 8 to 14 have pleaded that their houses were already in existence in plot nos.234 and 238 at the time of partition. Plot no.11 was out of abadi deh and was not included in partition, whereas plot no.12/4 was measured and partitioned by Local Commissioner, who visited the spot on 06.06.2004. The said partition was done by including plot no.239, but by clerical mistake, this fact could not be mentioned in the report of Local Commissioner. It was also alleged that plaintiffs are in unlawful possession of the suit property. However, these defendants alleged that they have no objection if the suit land is partitioned as per R. S. A. No. 707 of 2011 3 record of allotment. Learned Civil Judge (Junior Division), Rohtak, vide judgment and decree dated 25.10.2008, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Rohtak, vide judgment and decree dated 09.11.2010. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that plot nos.234, 238 and 11 already stood partitioned and only plot no.12/4 remained to be partitioned. The contention cannot be accepted. Bhim Singh – plaintiff no.1, while appearing in the witness-box, has stated that Panchayati Compromise (Ex.D-1) dated 16.06.1993 has been signed by plaintiff no.3 Mehar Singh and defendant no.10 Sewa Ram. Bhim Singh also stated that written settlement took place between the parties on 10.06.2003, which has been signed by him as well as his brother Mehar Singh. He also stated that on 23.02.2003 also, a writing was executed and it was signed by all of them. It is thus apparent that by mutual settlement, parties have already effected partition. Learned counsel for the appellants, however, contended that the said partition was never acted upon. However, learned counsel for the appellants could not refer to any pleading on behalf of appellants/plaintiffs to this effect. On the contrary, Bhim Singh stated R. S. A. No. 707 of 2011 4 that he did not know if as per settlement dated 10.06.2003, defendant no.10 Sewa Ram received Rs.7,000/-. Consequently, it cannot be said that the settlement was not acted upon. In fact, the problem perhaps arose because according to Bhim Singh, they got appointed Local Commissioner and it was found on demarcation that land in their possession was lesser than their share. However, it would not mean that mutual partition was not implemented. On the other hand, even assuming that mutual partition was not effected, then the suit is bad for partial partition as well as non-joinder of other co-sharers. If there was no mutual partition, then land of plot nos.234, 238, 239 and 11 was also required to be included in the suit for partition along with land of plot no.12/4. However, the suit has been filed for partition of land of plot no.12/4 only, which is manifestly bad for partial partition. In addition to it, Bhim Singh (PW-1) admitted that plot no.239 measuring 201 sq. yds. has been sold by Banwari (predecessor of defendants no.1 to 7). Bhim Singh added that they need their share in that plot. Bhim Singh also stated that Banwari has also sold 300 sq. yds. of plot no.12. Bhim Singh has also stated that his brother Mehar Singh – plaintiff no.3 sold 280 sq. yds. land to Sat Narain. However, the aforesaid purchasers have not been made party to the suit and consequently, suit is also bad for non-joinder of all the co-sharers. Learned counsel for the R. S. A. No. 707 of 2011 5 appellants vehemently contended that no sale deed has been executed in favour of said purchasers. However, the factum of sale has been admitted by plaintiff no.1 in the witness-box. From the aforesaid, it is manifest that there is no illegality or infirmity in the concurrent finding of the courts below. The suit land has already been partitioned mutually along with other land. In the alternative, the suit is bad for partial partition as well as for non-joinder of all the co- sharers. Consequently, the plaintiffs have been rightly non-suited. There is no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. February 09, 2011 ( L. N. MITTAL ) monika JUDGE