Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.1195 of 2011 (O&M) Date of decision: 24th February, 2014 Harbans Lal and others Appellants Versus Joginder Pal and others Respondents CORAM: HON’BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether Reporters of Local Newspapers may be allowed to see the judgment?.
2.
Whether to be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
Present: Mr.Ajay Singla, Advocate for the appellants.
Mr.Sudhir Pruthi, Advocate for respondents No.1 to 3.
RAKESH KUMAR GARG, J.
Plaintiff-respondents sought separate possession of the property in dispute by way of its partition by metes and bounds with a further relief of permanent injunction restraining the defendants from alienating the suit property.
As per the averments, plaintiff-respondents along with defendants were co-sharer of the suit land which was purchased vide sale deed dated 23.08.1979.
Since the defendants were not allowing the plaintiffs to enjoy the fruits of the land jointly owned by them, necessity arose to file the instant suit.
Singh Rattan Pal 2014.03.03 14:54 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1195 of 2011 (O&M) 2 Defendants No.1 to 7 and 11 appeared and contested the suit by filing written statement raising various preliminary objections.
It was submitted that the suit was not maintainable as partition of the land has already been effected between the co-sharers in the year 1980 and since then all the co-sharers were in exclusive possession of their share as owners and even otherwise the whole property was not included in the plaint and thus, the suit was bad for partial partition.
It was further submitted that the co-sharers had also purchased 26 Marlas of land from Karam Singh etc vide another registered sale deed dated 23.08.1979 and the whole property had been partitioned and no property has been left joint.
It was further averred that all the co-sharers have already constructed their houses over their share and defendants were in exclusive possession of their area measuring 10 Marlas, and thus, dismissal of the suit was prayed for.
Defendants No.8 to 10 and 12 were proceeded against ex- parte.
On the basis of evidence on record and after hearing learned counsel for the parties, the trial Court vide its judgment and decree dated 18.02.2009 partly decreed the suit of the plaintiff- respondents.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellants i.e.Legal Representatives of defendant No.1 filed an appeal, which was also dismissed by the fiRs.appellate Court vide its judgment and decree dated 22.01.2011.
While dismissing the appeal, the lower appellate Court observed as under: Singh Rattan Pal 2014.03.03 14:54 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1195 of 2011 (O&M) 3 “11.
I have considered the arguments advanced before me.
I have also gone through the documents produced on record by both the parties.
It is not disputed that Santo, Massa Ram, Raunki, Gurdas Ram and Dhanna Ram jointly purchased 19 ½ Marlas of land by virtue of sale deed dated 23.8.1979, which is proved on record as Ex.P1.
Joginder Pal, Makhan Lal and Bikkar Ram sons of Massa Ram have filed suit for possession by partition of property by metes and bounds.
The defendants contesting the suit have not denied the sale deed dated 23.8.1979 Ex.P1 but as per their version the property involved in this sale deed as well as the property purchased vide sale deed dated 23.8.1979 Ex.
D2 was jointly partitioned among the Co.sharers in the year 1980 and since then they are in exclusive possession of their respective shares.
Santo has constructed her house and installed Atta Chakki in her share by spending huge amount.
It is the appellant and other contesting defendants who have claimed this family partition in the year 1980.
Therefore, the onus is heavily on them to prove family partition.
Apart from sole testimony of Harbans Lal DW1 no other witness has been examined to establish the plea taken by the appellant and other defendants in the written statement.
The property in question was jointly purchased by five persons namely, Santo, Massa Ram, Raunki, Gurdas Ram and Dhanna Ram whereas, as per sale deed dated 23.8.1979 Ex.D2 Chhaju Ram and Purna had purchased 6 marlas of land whereas Massa Ram, Raunki Ram, Santo purchased 15 marlas 4 Sarsahis, Dhanna Ram and Gurdas 5 Marlas of land from Karam Singh and Mehanga Singh.
Chhaju Ram and Purna have not purchased any part of the property involved in the sale deed Ex.P1.
Therefore, the property involved in these two sale deeds mentioned above, cannot Singh Rattan Pal 2014.03.03 14:54 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1195 of 2011 (O&M) 4 be inter-mingled with each other.
The things would have been different if all the purchasers were same in both the sale deeds.
Therefore, the plea raised by the appellant regarding partial partition of the property is without any basis.
12.
There is nothing on the file to show that the property in dispute was ever partitioned among the Co.sharers in the year 1980 as claimed by the appellant/contesting defendants.
In case Santo has raised construction over the property beyond her share, then she has done so on her own risk.
By raising construction, she cannot claim the area beyond her share.
In the absence of any proof of oral family partition among the co-sharers the suit filed by the plaintiffs seeking partition of the property by metes and bounds is fully justified.
With these observations the judgment and decree passed by the lower Court is fully justified and do not require any interference.
Therefore, the judgment and decree passed by the lower Court is upheld.
The appeal preferred by the appellant/legal heirs of defendant No.1, is dismissed with costs.”
.
Still not satisfied, Legal Representatives of defendant No.1 have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: (i) Whether the judgments and decrees of the learned courts below are perveRs.and not sustainable in view of the fact that the defendants-appellants are not in possession of the property more than their share?.
(ii) Whether the private partition without the intervention of the Court is valid and binding on the parties when Singh Rattan Pal 2014.03.03 14:54 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1195 of 2011 (O&M) 5 the parties are not in possession of more than their share?.
(iii) Whether in the facts and circumstances of the case the judgments and decrees of the learned courts below are sustainable in law, being result of misreading and misconstruing the evidence on record?.
In support of his case, counsel for the appellants has vehemently argued that the suit is bad for partial partition as admittedly another piece of land measuring 26 Marlas was purchased by the Co.sharers on 23.08.1979 (Ex.D2).which was also joint between the parties but the plaintiff-respondents have not sought partition of the said property.
However, a perusal of the substantial questions of law, as framed, would show that though a plea of partial partition has been taken yet no substantial question of law has been raised on the basis of the plea taken.
Moreover, the property purchased vide sale deed dated 23.08.1979 (Ex.D2) cannot be intermingled with the other property for which partition has been sought, as purchaser in both the sale deeds is not the same.
In view of the aforesaid observations, the plea of partial partition is also not sustainable.
It is further contention of the appellants that the courts below have misread and misinterpreted the statement of PW-2 Joginder Pal who has categorically admitted that defendant No.1 has installed a flour mill and the property in possession of the appellants is Singh Rattan Pal 2014.03.03 14:54 I attest to the accuracy and integrity of this document Punjab & Haryana High Court Rs.No.1195 of 2011 (O&M) 6 four-walled, where the flour mill exists, besides a room and a shed for tethering cattle and in view of the aforesaid statement of the plaintiff it is clearly proved that the appellants are in possession of land to the extent of their share and they are not in possession of the land more than their share, and thus, the trial Court committed a legal error in passing the decree for partition of the property treating the same to be joint, and therefore, the findings are perveRs.and legally not sustainable.
The contention of learned counsel for the appellants that the property in dispute was privately partitioned somewhere in the year 1980 and since then the parties were in exclusive possession of their share has not been proved.
The plea of earlier partition effected between the parties in the year 1980, is not supported by any evidence on record.
Despite the aforesaid plea taken, the appellants have failed to discharge their onus to prove such partition.
No other argument has been raised.
Thus, the substantial questions of law, as raised, do not arise at all in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE February 24, 2014 rps Singh Rattan Pal 2014.03.03 14:54 I attest to the accuracy and integrity of this document Punjab & Haryana High Court