Punjab-Haryana High Court
Bhola And Ors vs Om Pati And Ors on 7 July, 2023
Neutral Citation No:=2023:PHHC:085940
2023:PHHC:085940
RSA-77-2011 (O&M) --1--
205 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-77-2011 (O&M)
Decided on:-07.07.2023
Bhola and others ....Appellants..
vs.
Smt. Om Pati and others ....Respondents.
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. V.D. Sharma, Advocate for the appellants.
Mr. Subhash Ahuja, Advocate for the respondents.
*****
HARKESH MANUJA J. (Oral)
CM-14198-C-2012
Prayer in the present application is for impleading the legal heirs
of respondent No.8.
For the reasons mentioned in the application which is duly
supported by an affidavit, same is allowed and persons mentioned in para 3
of the application are ordered to be impleaded as legal representative of
respondent No.8, for the purpose of pursuing the present appeal.
Notice of the application was issued on 07.12.2012, however,
despite service, no one has chosen to appear on behalf of LRs of respondent
No.8.
Amended memo of parties is taken on record.
CM stands disposed of.
Main case
1. By way of present regular second appeal, challenge has been
made to the judgment dated 24.07.2010 passed by the court of learned
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Additional District Judge, Jind, thereby, reversing the judgment and decree
dated 03.11.2008 passed by the court of learned Additional Civil Judge
(Senior Division), Narwana, resulting into decreeing the suit for partition
filed by the respondents.
2. Briefly stated the facts are that the respondents filed a suit for
partition as regards land measuring 5 kanal 11 marla comprising in
khewat/khata No.536/745, Khasra No.501 within the revenue estate of
village Danoda Khurd, Tehsil Narwana, claiming it to be joint property with
appellants-defendants. In the written statement, one of the pleas taken by the
appellants-defendants was that the properties among the parties stood
partitioned, besides it, they also raised a plea that the suit in hand was liable
to be dismissed being for partial partitioned as certain other gair mumkin
properties/houses situated in village Danoda Khurd were not made part of
the suit.
3. The trial Court vide judgment and decree dated 03.11.2008
dismissed the suit filed by the respondents/plaintiffs inter alia on the ground
that the partial partition of the joint property was not permissible, although,
the appellants and the respondents were not precluded from instituting fresh
suit for partition in accordance with law by placing on record all the
properties joint between them.
4. Aggrieved thereof, the respondents-plaintiffs filed first appeal and
the same was allowed vide judgment and decree dated 24.07.2010, thereby,
decreeing the suit. The appellate Court reversed the judgment passed by the
trial Court primarily on the ground that there was no revenue record
available on the file so as to substantiate the factum of other joint properties
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owned by the parties.
5. I have heard learned counsel for the parties and gone through the
paper book.
6. A perusal of paper book shows that in the counter claim filed by
the appellants-defendants in their written statement specifically mentioned
about the factum of other properties being jointly owned by the parties,
besides it, even plaintiff No.4-Sant Ram while appearing as PW-1 in his
cross-examination admitted the factum of few other properties being joint
between the parties.
7. In view of the aforesaid, once the factum of other joint properties
between the parties was part of the pleadings as well as the evidence
available on record, the first appellate Court committed an error of law while
ignoring the aforesaid pleadings & the evidence and decreeing the suit for
partial partition.
8. In view of the discussion made herein above, the judgment and
decree dated 24.07.2010, passed by the appellate Court is hereby set aside
and the matter is remanded to the appellate Court to decide the matter afresh
after hearing both the sides and by taking into consideration the entire
pleadings as well as the evidence available on record. Considering the fact
that the suit was filed in 2004, the first appellate Court is requested to do the
needful within a period of six months from today.
9. All the pending application(s), if any, shall also stand disposed
of.
07.07.2023 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/ No
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