Regular Second Appeal No. 4294 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4294 of 2009 Date of decision : July 06, 2010 Harbhajan Singh and others ....Appellants versus Wassan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. BS Jaswal, Advocate, for the appellants L.N. Mittal, J. (Oral) Defendants no. 1 to 3 having remained unsuccessful in both the courts below have filed instant second appeal. Suit was filed by respondents no. 1 and 2 against appellants (defendants no. 1 to 3) and respondents no. 3 and 4 (defendants no. 4 and 5 who were given up in the trial court). The plaintiffs alleged that defendant no. 5/respondent no. 4 Lashman Singh alias Mukhtiar Singh got joint land partitioned through revenue court vide partition order dated 25.11.1971 and suit land measuring 26 kanals 12 marlas fell to the share of defendant no. 5. Warrant of possession dated 7.6.1978 was issued. Possession of the suit land was delivered to defendant no. 5 vide rapat roznamacha Patwari dated 16.6.1978. Defendant no. 1, who was in possession of 2 kanals of land out of the suit land and had shown Chari crop therein, was paid Rs 30/- as Regular Second Appeal No. 4294 of 2009 -2- compensation for the crop and defendant no. 1 accepted the same and delivered possession of the said land also to defendant no. 5 and thumb marked the report regarding the same. Thus, defendant no. 5 became owner in possession of the suit land. He sold the same to the plaintiffs vide registered sale deed dated 1.12.1978. Since then the plaintiffs are owners in possession of the suit land. Mutation was also sanctioned in their favour on 20.10.1981. However, taking advantage of wrong revenue entries defendants started claiming themselves to be owners of the suit land. Accordingly, plaintiffs sought declaration that they are owners in possession of the suit land. They also sought permanent injunction restraining defendants from dispossessing the plaintiffs from the suit land. Defendants no. 1 to 3/appellants contested the suit and raised various preliminary objections. They also pleaded that defendant no. 5 had no right to seek partition of the joint land. It was also alleged that the partition order was not implemented in the revenue record and therefore, partition order has lapsed and lost its force. Learned Civil Judge (Senior Division), Tarn Taran vide judgment and decree dated 25.7.2007 decreed the plaintiffs' suit. First appeal preferred by defendants no. 1 to 3 has been dismissed by learned Additional District Judge, Tarn Taran vide judgment and decree dated 9.4.2009. Feeling aggrieved, defendants no. 1 to 3 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that the appellants were not party to the partition case in the revenue court. The Regular Second Appeal No. 4294 of 2009 -3- contention cannot be accepted because no such plea was even raised in the written statement. Learned counsel for the appellants also contended that the partition order was never implemented. This contention is also untenable because even warrant of possession was issued pursuant to partition order and possession of the suit land was delivered to defendant no. 5 to whom the suit land had been allotted in the partition proceedings. Consequently, it cannot be said that the partition order was not implemented, merely because in subsequent jamabandies, defendant no. 5 was not recorded to be exclusive owner of the suit land. However, the partition order was fully implemented by delivering possession of the suit land to defendant no. 5. Learned counsel for the appellants also contended that execution petition filed by defendant no. 5 and others was dismissed during pendency of the suit on the ground of delay. The contention is devoid of merit because it is not substantiated by pleading or any material on record. The contesting defendants' defence was that defendant no. 5 had no right to seek partition of the joint land. However, the contesting defendants did not allege as to why and how defendant no. 5 despite being co-sharer in the joint land did not have right to seek partition. On the other hand, being co-sharer defendant no. 5 did have right to seek partition of the joint land. Another defence raised by the contesting defendants is that the partition order was not implemented. However, as already discussed herein before, the partition order was fully implemented by delivering possession of the suit land to defendant no. 5 to whom suit land was allotted in partition. Merely because subsequent revenue entries did not reflect the Regular Second Appeal No. 4294 of 2009 -4- position as per partition order, it cannot be said that the partition order was not implemented. Moreover, as per partition order, defendant no. 5 became owner of the suit land and consequently, he could not be divested of the ownership merely because necessary entry was not made in the revenue record. Defendant no. 5 sold suit land to plaintiffs who thereafter became owners in possession of the suit land. There is concurrent finding of both the courts below that the plaintiffs are proved to be owners in possession of the suit land. The said finding is based on proper appreciation of evidence and is supported by sufficient and sound reasons. The said finding cannot be said to be perverse or illegal so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is completely without merit and is accordingly dismissed in limine. ( L.N. Mittal ) July 06, 2010 Judge 'dalbir'