RSA No.3088 of 2005(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3088 of 2005(O & M) Date of Decision:14.05.2009 Naranjan Singh & Ors. ....appellants Versus Piar Kaur & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.D.S.Pheruman, Advocate with Mr.P.L.Singla, Advocate for the appellants Mr. B.R.Mahajan, Advocate for respondent No.5. **** RAKESH KUMAR GARG J. CM No.8102 & 8105-C of 2005 I have heard learned counsel for the parties. Counsel for the respondents has no objection if these applications are allowed and delay in filing and refiling the appeal is condoned. Ordered accordingly. Delay in filing and refiling the appeal is condoned. CMs disposed of. RSA No.3088 of 2005 This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that they are owners in possession of the land in dispute and the defendants have no right, title or interest in the suit land/house with RSA No.3088 of 2005(O & M) 2 consequential relief restraining the defendants from dispossessing the plaintiffs forcibly and illegally and interfering in possession of the plaintiffs over the suit land/house, was dismissed. As per the averments made in the plaint, one Deva Singh was the owner of the suit land. About 60 years ago a family settlement was arrived at between the ancestors of the plaintiffs and defendants whereby the suit land measuring 5 kanals 14 marlas fell to the share of the plaintiffs while the house constructed on one and a half kanal of land within the Lal Lakir fell to the share of the defendants. The plaintiffs constructed the house and orchard as shown in the site plan in this property about 40 years ago and since then the plaintiffs and defendants are residing in their respective shares. The defendants were taking the benefit of their names in the revenue record and were threatening to dispossess them illegally and forcibly. After the family partition they were left with no concern of the suit land. Hence the present suit. Upon notice, the defendants appeared in the Court and filed their written statement taking various preliminary objections. On merits, it was alleged that the ancestors of the parties owned the suit property. However, the correctness of pedigree table was denied. It was denied that a family partition took place between the ancestors and both the parties. It was further denied that in lieu of the suit property the defendants were given the house within the Lal Lakir. The plaintiffs were in separate possession over khasra No.96, whereas the defendants were in possession of khasra No.223. They had constructed the boundary walls in their respective possession and they were owners of the same, respectively. No partition took place and the khatta is still joint. There is no question of sanctioning the mutation as there was no family settlement. All the facts alleged in the plaint were denied. Dismissal of the suit was prayed for. RSA No.3088 of 2005(O & M) 3 From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiffs are in possession of land in suit as alleged?OPP 2. Whether the plaintiff has locus standi to file the present suit?OPP 3. Whether the suit is bad for non-joinder of necessary parties?OPD 4. Relief Additional issues were framed on 20.08.1996: 3A Whether Sohan Singh sold the property to Mit Singh, as alleged? If so, its effect? OPD 3B Whether the suit in the present form is not maintainable?OPD After hearing the arguments of both the counsel for the parties, the trial Court dismissed the suit of the plaintiffs-appellants. Feeling aggrieved from the judgment and decree of the trial Court the plaintiffs filed an appeal which was also dismissed. While dismissing the appeal the Lower Appellate Court observed as under: “In this case, the dispute is regarding 5K-14M of land bearing kila No.96 and 223. As per the copy of the jamabandi for the year 1990-91, Ex.P-1/Ex.D-4 Sohan Singh is shown as owner to the extent of ½ share and Lachhman Singh has been shown to be owner of remaining ½. In the column of cultivation there is entry of Makbuja Malkan. These two numbers are mentioned as Gair Mumkin Taur. There is also entry of mutation No.1953 regarding inheritance of Lachhman Singh in favour of Sohan Singh to the extent of ½. Copy of mutation Ex.D-5 is RSA No.3088 of 2005(O & M) 4 also placed on the record. The plaintiffs have also examined three witnesses to establish the oral family partition between the ancestors of both the plaintiffs and defendants, but the witnesses examined by them have not supported their case in the cross examination. Naranjan Singh PW1 admitted in his cross-examination that their khatta is still joint. Hazara Singh PW1 and Swaran Singh PW4 have also deposed on the same lines. During their cross-examination they admitted that the plaintiffs and defendants are co-sharers in the land in dispute. They have further given statements at the time of cross- examination that some written family settlement was arrived at, which was thumb marked by the parties. In fact, there is no such family settlement on the record. Even the alleged oral family partition between the ancestors of both the parties is not established on the file. It has been never incorporated in the revenue record. As per the revenue record, the khatta is still joint.” Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the parties. Both the Courts below on appreciation of evidence on record have recorded a concurrent finding of fact that there was no family partition between the ancestors of both the parties and as per the revenue record the khatta was still joint. Learned counsel for the appellants was unable to show any perversity in the findings of the courts below. Thus, I find no merit in this appeal. RSA No.3088 of 2005(O & M) 5 No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 14.05.2009 neenu