IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1196 of 1981 (O&M) Date of decision: 5.10.2009 Karnail Singh -----Appellant Vs. Kartar Singh and others ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL Present:- None for the appellants. None for the respondents. Adarsh Kumar Goel,J. 1. This appeal has been filed by the defendant against decree in suit for possession filed by the respondent-plaintiffs. 2. Case of the plaintiffs is that they purchased share in the property in dispute vide sale deed dated 1.6.1976. Mutation was duly sanctioned in their favour. The defendant also purchased share in the same property and thus, plaintiffs were entitled to possession by partitition. 3. The defendant contested the suit, inter-alia, on the ground that he was exclusive owner and in the alternative he became owner by adverse possession. The RSA No.1196 of 1981 (O&M) trial court dismissed the suit upholding the plea of the defendant-appellant. 4. The lower appellate Court reversed the decree of the trial court. It was observed:- “In para 4 of the plaint, it was specifically mentioned that the defendant purchased 1/4th share out of the property from Ralli and mutation no.1659 was sanctioned in his favour. The allegations made in para No.4 of the plaint were admitted as correct by the respondent. I, agree with the counsel for the appellants that, if respondent had exclusive share in the land bearing Khasra No.344, the respondent would not have permitted Harnam Kaur to sell the land in favour of the plaintiffs-appellants and further himself would not have purchased the share of Ralli. This shows, the jointness of the suit was admitted even by the defendant-respondent. Even otherwise, there was no reason to discard the documentary evidence. In the revenue paper, the appellants had been recorded co-sharers in the land. Simply, because, the defendants- respondent had constructed a house over a portion of the land, would not permit me to reach the conclusion that the respondent was the exclusive owner of the suit land. The 2 RSA No.1196 of 1981 (O&M) appellants had been recorded as co sharers in the land. They had purchased land from Harnam Kaur as well. In such circumstances, the defendant-respondent could not acquire title by adverse possession. It is not disputed, that, the appellants had been given one house in the life time of Bishan Singh and the other house was retained by Bishan Singh. The question of partition of the said house, as such could not be arise and the suit could not be held to be bad for partial partition. The finding of the lower court on issues No.2, 4 for the reasons discussed above, is liable to be set aside. Consequently, I set aside the findings of the lower court on issues No.2 and 4. As a result of my findings above, I accept the appeal, set aside the judgment and decree of the lower court and pass a preliminary decree for possession by partition of the suit property comprising Khewat No.60, Khatuni No.125, Khasra No.344 situated at village Katran, Tehsil Samrala in favour of the appellants and against the respondent.” 5. The appeal was admitted in the year 1981. During pendency of this appeal, the appellant died and his legal representatives were sought to be brought on record 3 RSA No.1196 of 1981 (O&M) by the respondents. Notice was issued to them but they remained unserved. 6. The appellant or his legal representatives have, thus, failed to pursue the appeal. No substantial questions of law have been proposed or framed at the time of admission of appeal or thereafter. Finding of the lower appellate court that the defendant was a co-sharer and not exclusive owner is, prima-facie, a finding of fact. 7. The appeal is dismissed for non-prosecution. October 5, 2009 (Adarsh Kumar Goel) ‘gs’ Judge 4