Punjab-Haryana High Court
Raja Singh vs Gajjan Singh And Others on 6 December, 2022
RSA No. 3946 of 2019 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 3946 of 2019 (O&M)
Date of decision : 6.12.2022
...
Raja Singh
................Appellant
vs.
Gajjan Singh and others
.................Respondents
Coram: Hon'ble Mr. Justice H. S. Madaan
Present: None for the appellant.
...
H. S. Madaan, J. (Oral)
1. Briefly stated facts of the case are that, plaintiff - Gajjan
Singh had filed a suit against defendants- Daljit Singh, Malkiat
Singh, Manjit Singh, Bhajjan Kaur @ Harbhajan Kaur, Raja Singh,
Amarjit Singh and Malkiat Singh, seeking possession of 3/12
share by way of partition of the house fully detailed in head note of
the plaint and house situated within redline of village Sohana,
District SAS Nagar, in addition to that craving for grant of
permanent injunction restraining the defendants from making any
type of construction over the suit property without getting it
partitioned and further restraining the defendants from alienating
in any manner, any specific portion and more than their share out
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of the suit property or from changing its nature.
2. As per case of the plaintiff, he alongwith defendants are
owners in possession of the house in suit. On account of jointness,
the parties are unable to enjoy the property properly, as such the
plaintiff, desirous of getting his share partitioned, had brought the
suit in question on 29.3.2014.
3. Upon notice, defendants No. 1 to 5, put in appearance.
Defendants no. 1, 2, 3 and 5 filed written statement contesting the
suit, denying the averments made in the plaint. Such defendants
came up with the version that the suit property is not joint between
the parties. According to the answering defendants all the
properties were orally partitioned amongst all the co-sharers/co-
owners about 25-30 years previously and separate shares were
allotted to the owners, of which they came in exclusive possession,
raising construction over such shares in the form of residential
houses. The parties are separate in mess and residence since then.
The property is in exclusive possession of defendant No.5, who
had got installed an electric meter therein, in the name of his son.
The possession of the said village abadi property which was lying
vacant, was taken over by defendant no.5 about 30 years back.
However, plaintiff, by taking benefit of wrong entries in the
jamabandi, had brought the present suit. Such defendants prayed
for dismissal of the suit.
4. Defendant No.4 adopted the written statement filed on
behalf of defendants No. 1, 2, 3 and 5, by making statement on
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19.1.2015.
5. However, in the written statement filed by defendants
No. 6 and 7, they admitted the claim of the plaintiff submitting that
the suit be decreed as prayed for.
6. Plaintiff filed the replication controverting the
allegations in the written statement filed by the contesting
respondents, reiterating the averments in the plaint.
7. From the pleadings of the parties, following issues were
framed :-
1. Whether the plaintiff is entitled for possession by way of
partition of suit property, as prayed for ? OPP
2. Whether the plaintiff is entitled for permanent injunction,
as prayed for ? OPD
3. Whether the suit of the plaintiff is not maintainable? OPD
4. Relief.
8. The parties were afforded adequate opportunity to lead
evidence in support of their respective claims.
9. In order to prove his case, plaintiff -Gajjan Singh,
himself stepped into witness box as PW-1 and further examined Gian
Chand Architect as PW-2. With that the evidence of the plaintiff was
closed.
10. In rebuttal, defendant - Raja Singh appearing as DW-1
reiterated the case of the contesting respondents. With that the
evidence of the contesting respondents was concluded.
11. After hearing the arguments, the trial Court decided
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issues No. 1 and 2 in favour of the plaintiff. Issue No. 3 was also
decided in favour of the plaintiff and against the defendants.
Resultantly, the suit of the plaintiff was decreed and he was found
entitled to possession of 3/12 share by way of partition of the suit
property. Defendants were permanently restrained from raising any
type of construction over the suit property unless the suit property is
partitioned by metes and bounds, as well as from alienating specific
portion and more than their share out of the suit property and further
from changing the nature of the suit property till final partition.
12. Defendant Raja Singh had challenged the judgment and
decree dated 12.12.2016, passed by the trial Court, by way of filing
an appeal before District Judge, SAS Nagar, Mohali, which was
assigned to Additional District Judge, SAS Nagar, Mohali, who vide
judgment dated 30.5.2019, affirmed the judgment and decree passed
by the trial Court and dismissed the appeal.
13. Still feeling dissatisfied, Raja Singh has approached this
Court by filing the present regular second appeal.
14. When the appeal was taken up on 21.8.2019, counsel for
the appellant was directed to produce document of title qua Khasra
Nos. 720 and 721, with regard to alleged joint holding of the parties,
clarifying that in case failure to do so, an adverse inference would be
drawn against the appellant and findings of both the courts below that
the property was self acquired, would be upheld.
15. On the adjourned date i.e. 19.9.2019, counsel for the
appellant placed on record certain documents, Annexures A-1 to A-8
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and requested for an adjournment. The case was adjourned to
20.1.2020 for consideration. Learned counsel for the appellant took
further adjournment to address the arguments. Vide order dated
20.1.2020, it was observed that no further adjournment shall be
granted and on the next date of hearing the case shall be considered
and decided irrespective of the fact whether counsel for the appellant
comes present to argue the case or not. The case was then adjourned
to 20.3.2020. On the date fixed 8.8.2022, the appeal went
unrepresented. Similar was the position on the next date of hearing
fixed as 22.9.2022 and then on 10.10.2022 and even today, counsel
for the appellant has not opted to appear.
16. I have gone through the record and I find that both the
Courts on proper analysis of evidence and correct interpretation of
law have returned concurrent findings that plaintiff is co-owner to the
extent of 3/12th share in the suit property and the property being joint,
he has got a right to get his share separated by getting it partitioned
by metes and bounds. The plea raised by the contesting defendants
that the property has already been partitioned and defendant No.5
Raja Singh is in exclusive possession of the suit property as owner,
since it was allotted to him during partition, was rejected, observing
that the contesting defendants have failed to establish those
assertions.
17. The plea raised by the plaintiff that defendants were
threatening to raise construction over the suit property without
getting it partitioned and to alienate the specific portion there from
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and that too more than their share and further they were trying to
change its nature, was found to have force and resultantly, the suit of
the plaintiff was decreed and appeal filed against the judgment and
decree passed by the trial Court was dismissed by the Ist Appellate
Court.
18. Both the judgments are quite detailed one, well reasoned
and do not suffer from any illegality or infirmity. I do not find any
reason to interfere with such judgments. No substantial question of
law or fact, arises in this case.
19. The appeal is found to be without any merit and is
dismissed accordingly.
( H.S. Madaan )
6.12.2022 Judge
chugh
Whether speaking / reasoned Yes / No
Whether reportable Yes / No
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