Dalvir Singh vs Janak Raj And Ors
2023 Latest Caselaw 3666 P&H

                            RSA                                   -1-                    2023:PHHC:047810

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            108                                           RSA No.1501 of 2022 (O&M)
                                                                          Reserved on : 27.03.2023
                                                                          Date of Decision : 11.04.2023


                            Dalvir Singh                                                      ....Appellant

                                                              VERSUS

                            Janak Raj                                                       ....Respondent

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :    Mr. H.S. Jugait, Advocate for the appellant.

                            ALKA SARIN, J.

The present appeal has been preferred by the defendant against

the concurrent findings recorded by both the Courts below. The Trial Court

vide judgment and decree dated 13.02.2017 had decreed the suit of the

plaintiff-respondent by passing a preliminary decree in favour of the

plaintiff-respondent to the effect that the plaintiff-respondent and the

defendant-appellant are entitled to half share each in the suit property.

Aggrieved by the same, an appeal was preferred by the defendant-appellant,

which has also been dismissed vide judgment and decree dated 10.03.2022

by the First Appellate Court. Hence, the present regular second appeal.

The brief facts relevant to the present lis are that the plaintiff-

respondent filed a suit for partition of half share out of joint abadi property

measuring 01 kanal 0 marla described in detail in the plaint. The suit was

contested by the defendant-appellant on the ground that two Khatauni

Nos.153 and 154 have been carved out and hence the property was not joint

between the parties and that it already stood partitioned. Replication was

filed reiterating the contents of the plaint and controverting those of the

written statement.

JITENDER KUMAR 2023.04.11 12:03 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             RSA                                   -2-                   2023:PHHC:047810

From the pleadings of the parties, the following issues were

framed by the Trial Court :

1. Whether plaintiff is entitled for separation of his ½

share by way of partition, as prayed for ? OPP

2. Whether suit is not maintainable in the present

form ? OPD

3. Relief.

The Trial Court, holding that there was no evidence qua

partition, decreed the suit vide judgment and decree dated 13.02.2017.

Aggrieved by the same, an appeal was preferred by the defendant-appellant

which was dismissed by the First Appellate Court vide judgment and decree

dated 10.03.2022.

Learned counsel for the defendant-appellant would contend that

the judgments and decrees of the Courts below are illegal and the suit for

partition ought to have been dismissed. It is submitted that since separate

khataunis have been carved out, it was apparent that the suit property was

already partitioned and was not joint between the parties. It is submitted that

the parties were in exclusive possession of their shares and the suit deserved

to be dismissed.

I have heard learned counsel for the defendant-appellant.

Both the Courts below have concurrently found that there was

no evidence on the record that the suit property had already been partitioned.

There is no mention of any partition in the revenue record. The argument of

learned counsel for the defendant-appellant that since separate Khatauni

Nos.153 and 154 have been carved out, hence, the suit property was not joint

between the parties, deserves to be rejected in the absence of any entries in JITENDER KUMAR 2023.04.11 12:03 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             RSA                                    -3-                  2023:PHHC:047810

the revenue record depicting that any partition had taken place between the

parties. Further, the defendant-appellant in his cross-examination has

admitted that the suit property has not been partitioned by any competent

authority. There is no evidence available on the record regarding the

incorporation of any partition in the revenue record. In the absence of any

evidence depicting that the partition having taken place, I do not find any

ground to interfere with the concurrent findings returned by both the Courts

below.

In view of the above, I do not find any illegality or infirmity in

the judgments and decrees passed by both the Courts below. No question of

law, much less any substantial question of law, arises in the present case.

The appeal being devoid of any merit is accordingly dismissed. Pending

applications, if any, also stand disposed off.

Dismissed.

                                                                                       ( ALKA SARIN )
                            11.04.2023                                                     JUDGE
                            jk

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

JITENDER KUMAR 2023.04.11 12:03 I attest to the accuracy and integrity of this order/judgment.

Chandigarh