IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 502 of 2000. Decided on : 28 .5. 2010. Rama Ram …Appellant. Versus Sikh Ram and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Ramakant Sharma, Advocate. For the respondents : None. Kuldip Singh , Judge (Oral) Rama Ram was defendant No.2 who has assailed the judgment, decree dated 29.8.2000 passed by the learned District Judge, Hamirpur in Civil Appeal No. 162 of 1993 affirming judgment, decree dated 16.8.1993 passed by the learned Sub Judge 1st Class (II), Hamirpur in Civil Suit No. 205 of 1990. 2. The facts, in brief, are that respondent No.1 had filed a suit for possession by way of partition against Bakshi Ram predecessor-in-interest of respondents No.2 to 7 and appellant on the averments that land comprised in Khata No. 96, Khatauni No. 106, Khasra No. 587 vide jamabandi for the year 1985-86 situated at Tika Sarheri, Tappa Galore, Tehsil Nadaun, District Hamirpur is entered in the joint ownership of the parties. The share of respondent No.1 is 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 1/3rd i.e. 8 marlas and in the house to the extent of half share. There exists a continuous dispute between the parties and therefore, respondent No.1 approached the Court by filing the suit for partition. 3. The suit was contested by Bakshi Ram and appellant by filing separate written statements. Bakshi Ram in his written statement has taken preliminary objections of cause of action, estoppel, maintainability and entitlement of special costs under Section 35-A C.P.C. On merits, he denied that the land in dispute is joint between the parties. He has submitted that after family partition, the old house at Tika Sarehri was given to him. The new house constructed by him at Tika Sarehri is not joint and is exclusively owned by him. The appellant has also filed separate written statement, he pleaded that he has no objection for partitioning the suit land. He, however, denied the extent of share of respondent No.1. In replication the respondent No.1 reiterated his stand. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for decree of possession by way of partition as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the defendants are entitled to special costs U/S 35-A CPC? OPD 4. Whether the plaintiff is estopped by his act and conduct to file the present suit?OPD 5. Whether the plaintiff has no cause of action? OPD 5-A. Whether the share of the plaintiff has been wrongly mentioned in the plaint, if so, what is the correct share? OPD-2. 6. Relief. 3 The issue No. 1 was answered in affirmative but issues No. 2 to 5 and 5-A were answered in negative and the suit was decreed by the learned Sub Judge on 16.8.1993. In appeal filed by Rama Ram, the learned District Judge on 29.8.2000 affirmed the judgment, decree dated 16.8.1993, hence the second appeal which has been admitted on following substantial questions of law:- 1. Whether the learned courts below are right in not taking into consideration the statements of PW-1, that is the plaintiff as well as DW-1 Bakshi Ram who clearly admitted the case of the appellant with respect to the share in the land in dispute. 2. Whether the learned courts below are right in ignoring Exhibit DA, the Shajra Nasab for the year 1973-74 and Ext.DD Shajra Nasab for the year 1979-80. 3. Whether the Courts below are right in placing reliance upon Exts. DB and DC Shajra Nasab for the year 1985-86 and 1989-90 especially when the entries in both the Shajras stood rebutted by none else than the plaintiff himself. 4. Whether the learned courts below are right in not taking into consideration the law with respect to admission by a party as laid down by the Hon’ble Supreme Court in AIR 1981 SC 2085. 5. I have heard Mr. Ramakant Sharma, Advocate, learned counsel for the appellant and I have also gone through the record, none appeared on behalf of the respondents. It has been submitted by the learned counsel for the appellant that the trial Court has erred in decreeing the suit, similarly the learned District Judge has erred in law in affirming the judgment, decree passed by the trial Court. He has submitted that in any case the share of respondent No.1 comes to 1/4th and not 1/3rd as held by the two Courts below. The documentary evidence has been mis-construed by the courts below 4 while decreeing the suit of respondent No.1. He has prayed for acceptance of the appeal and dismissal of the suit. 6. The substantial questions of law No.1 to 4 are inter- connected, therefore, all of them are being taken up together for disposal. Ex.P-1 is the copy of jamabandi for the year 1985-86 wherein Bagga has been shown owner of 1/3rd share, Bakshi Ram, Sikh in equal share 1/3rd share, Rama Ram 1/3rd share. It has come on record that vide mutation No. 421, the estate of Bagga was mutated in favour of Bakshi Ram and Sikh. In remarks column of Ex.P-1, it has been stated that vide mutation No. 421 of succession the estate of Bagga Ram had gone to Bakshi Ram and Sikh 1/3rd share each. It has not been made clear how the estate of Bagga had gone to Bakshi Ram and Sikh 1/3rd share each. 7. Ex.DA is the pedigree table for the year 1973-74, Ex.DB is the pedigree table for the year 1985-86, Ex.DC is the pedigree table for the year 1989-90, Ex.DD is the pedigree table for the year 1979-80. The parties are not in dispute that their common ancestor was Bahadur who had three sons namely Poholo, Pohla and Swaru. Bakshi Ram and Sikh are the sons of Pohlo, Rama Ram is the son of Swaru. The estate of Bagga has gone to Sikh Ram and Bakshi Ram vide mutation No. 421. There is no dispute in this respect. Therefore, the pedigree tables Ex.DA, Ex.DB, Ex.DC and Ex.DD have no bearing on the ultimate decision since the parties are not disputing their linkage with the common ancestor. The learned trial 5 Court has rightly come to the conclusion that respondent No.1 has 1/3rd share in the land in dispute. This finding has been affirmed by the learned District Judge. The two courts below have rightly appreciated the material on record after considering oral and documentary evidence. No perversity in the impugned judgment has been pointed out, similarly mis-construction and mis-interpretation of the documents has also not been established. There is no merit in the appeal. The substantial questions of law No. 1 to 4 are decided against the appellants. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 28, 2010. (GR)