R.S.A No. 3575 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3575 of 2009 Decided On : 07.10.2009 Chandro and others ...Petitioners versus Smt. Shanti and others ...Respondents CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. N. K. Malhotra, Advocate, for the appellants. HEMANT GUPTA, J. (ORAL) The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby plot of land bearing no.78 measuring 250 sq. yards was found to be owned by the parties and a preliminary decree of partition in equal shares of the plaintiff and defendants was granted by the learned trial Court. As per the plaintiff, Krishan Lal, father of the plaintiff and defendants No.2 and 3 and defendant No.1-Bhup singh, purchased a plot measuring 250 sq. yards vide registered sale deed dated 13.02.1947. The plaintiff claims to be in possession of the same as co-owner, whereas the defendants asserted that the sale deed was fraudulently got executed in the name of Krishan Lal and on detection of such fraud, brothers, with the intervention R.S.A No. 3575 of 2009 -2- of the relatives arrived at the settlement. Krishan Lal constructed a house in the plot purchased later on and the defendants raised construction over the plot in dispute. Thus, the defendants are the owners of the suit property. The Courts have considered the sale deeds dated 13.02.1947 and sale deed dated 02.01.1961. The learned trial Court found that defendant Bhup Singh has not been examined as a witness. DW-1 Balbir Singh, his son, has admitted in cross- examination that there was no partition between his father and uncle i.e Krishan Lal. No family settlement, as per the written statement, was proved either by documentary or oral evidence. In view of the evidence led by the parties, the learned trial Court returned a finding that the property is joint between the parties and consequently, the plaintiff is entitled to seek partition of the same. The learned First Appellate Court affirmed the findings recorded by the learned trial Court. It was found that such family settlement propounded has not been proved on record. The title over the suit property on the basis of Municipal record was found to be untenable. It was found that the defendants have failed to prove the source from which the entire sale consideration was paid by Bhup Singh. Consequently, the finding recorded by the learned trial Court was affirmed. Learned counsel for the appellant has vehemently argued that the sale deed is in respect of plot whereas the R.S.A No. 3575 of 2009 -3- construction of house was raised by the defendants. By virtue of the decree passed, the partition of house has been ordered which was not even pleaded to be jointly constructed by Krishan Lal and Bhup Singh. The argument raised by learned counsel for the appellant was not the stand of defendants before the Courts below. In fact the stand of the defendants was that there is a family settlement and in such family settlement, the defendant has become owner of the suit property as Krishan Lal has purchased a separate plot, after arriving at the family settlement. Both the Courts have recorded concurrent finding of fact that there is no proof of family settlement, as pleaded by the defendants in the written statement. In fact the witness of the defendant has admitted that there is no such settlement. In the absence of any such settlement and the fact that the property was purchased by Krishan Lal and Bhup Singh jointly, the construction raised is presumed to be also joint. In view of the above, I do not find any patent illegality or irregularity which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. OCTOBER 07, 2009 (HEMANT GUPTA) shalini JUDGE