Roor Singh Vs. Shiv Singh and Others - Court Judgment

-1- Rs.No.3824 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.3824 of 2011 (O&M) Date of decision: 14.01.2014 Roor Singh ....Appellant Versus Shiv Singh and others ....Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment ?.

2) To be referred to the Reporters or not ?.

3) Whether the judgment should be reported in the Digest ?.

Present: - Mr.Vipin Mahajan, Advocate, for the appellant.

***** PARAMJEET SINGH, J.

CM No.10909-C of 2011 For the reasons stated in the application, CM is allowed.

Delay of 25 days in re-filing the appeal is condoned.

CM No.10910-C of 2011 For the reasons stated in the application, CM is allowed.

Delay of 24 days in filing the appeal is condoned.

Rs.No.3824 of 2011 This regular second appeal arises out of the suit for possession by way of partition by metes and bounds of the land shown in the site plan and detailed in headnote of the plaint under heads A,B,C, filed by respondent No.1/plaintiff against the appellant/defendant No.1 and respondents/defendants No.2 and 3.

The Court of fiRs.instance passed Singh Ravinder 2014.02.11 12:43 I attest to the accuracy and integrity of this document Chandigarh -2- Rs.No.3824 of 2011 preliminary decree dated 22.02.2007 in favour of the plaintiff and against appellant/defendant No.1.

Against the judgment and decree passed by the Court of fiRs.instance, appeal preferred by appellant/defendant No.1 has been dismissed vide judgment and decree dated 02.02.2011.

This is an unfortunate litigation between the brothers after the demise of their father Gurdit Singh.

The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail.

However, the facts relevant for disposal of this second appeal are to the effect that property in question was originally the ownership of Gurdit Singh and after his death property devolved upon the plaintiff and the defendants.

Now the dispute has arisen with regard to the property where some of the defendants have constructed their respective residential houses in the agricultural land, which is alleged to have fallen to their shares.

The plaintiff approached the civil Court that in the agricultural land houses have been constructed and some of the defendants are in possession of area more than their share and prayed for partition of the land by metes and bounds.

On notice defendants No.1 and 3 appeared and filed separate written statements.

Defendant No.1 filed contesting written statement taking various preliminary objections.

On merits it was admitted that property belongs to their father and he had died.

It is pleaded that parties have been living separately for the last more than 35-40 years and they Singh Ravinder 2014.02.11 12:43 I attest to the accuracy and integrity of this document Chandigarh -3- Rs.No.3824 of 2011 have been cultivating the land separately according to their shares.

Parties have constructed their respective houses on the agricultural land.

It is further pleaded that property in suit is not ancestral coparcenary property.

Defendant No.3 filed separate written statement admitting the claim of the plaintiff.

Defendant No.2 did not turn up despite service and as such he was proceeded against ex parte.

No replication was filed.

Court of fiRs.instance, on perusal of pleadings of the parties, framed following issues: - “1.

Whether the plaintiff is entitled to the decree for possession as owner by way of partition by metes and bounds of 1/4th share of the house in dispute as prayed for?.

OPP2 Whether the suit is not maintainable?.

OPD3 Whether plaintiff has no locus standi to file the present suit?.

4.

Whether plaintiff is estopped from filing the present suit by his own act and conduct?.

OPD5 Whether the suit is within time?.

OPD6 Relief.”

.

The Court of fiRs.instance, after appreciating evidence on record passed preliminary decree in favour of the plaintiff.

The said findings have been affirmed by learned lower appellate Court and the appeal filed by appellant has been dismissed.

Hence this regular second appeal.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the appellant contended that following Singh Ravinder 2014.02.11 12:43 I attest to the accuracy and integrity of this document Chandigarh -4- Rs.No.3824 of 2011 substantial questions of law arise in the present appeal: - “1.

Whether the learned Courts below erred in misreading the evidence led by the appellant?.

2.

Whether the findings ignoring material piece of evidence be sustained?.

3.

Whether the Courts below erred in not appreciating the pleadings in proper perspective?.”.

Learned Courts below have recorded a categorical finding that property is joint and in some of the property houses have been constructed.

Except one all the brothers have also admitted the fact with regard to joint nature of property and construction.

In view of the finding of fact that property is joint and in possession of all the brothers and had never been partitioned, I do not find any illegality or perversity in the judgments and decrees passed by learned Courts below.

Since both the Courts below have recorded concurrent findings of fact with regard to joint possession and construction of houses on various parts, no question of law muchless substantial question of law, as alleged, arises in the present appeal.

No other point has been urged.

Dismissed in limine.

(Paramjeet Singh) Judge January 14, 2014 R.S.Singh Ravinder 2014.02.11 12:43 I attest to the accuracy and integrity of this document Chandigarh