Punjab-Haryana High Court
Ajit Kumar Verma @ Gopal Krishan vs Balram Kumar Verma And Others on 12 September, 2023
Neutral Citation No. : 2023:PHHC:119956
RSA-3914-2019 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
128
RSA-3914-2019 (O&M)
Decided on : 12.09.2023
Ajit Kumar Verma @ Gopal Krishan
. . . Appellant(s)
Versus
Balram Kumar Verma and Ors.
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. R.K. Choudhary, Advocate
for the appellant(s).
****
SANJAY VASHISTH, J. (Oral)
1. Present Regular Second Appeal (RSA) has been filed by
defendant No.1 - Ajit Kumar Verma @ Gopal Krishan (appellant herein),
against the concurrent finding of decreeing the suit partially, for the purpose
of partition of the property amongst the parties to the lis.
2. Plaintiff filed the suit for declaration, partition and permanent
injunction, by pleading that residential house bearing property No.73, ad
measuring 300 sq. yards, situated in Ward No.19, Purewal Colony, Patti
Taraf Insar in District Panipat, owned by one Ami Chand, who is father of
plaintiff and defendants No.1 to 3, (in a family settlement in the year 1995).
Defendant No.3 - Smt. Kaushalya, sister of plaintiff, relinquished her share,
making the plaintiff and defendants No.1 & 2, joint owners to the extent of
1/3rd share each. Thus, plaintiff pleaded that he being the owner of the
property of 1/3rd share, on the basis of family settlement, be allowed his
separate part in the house by conducting the partition proceedings as per law.
3. On the other hand, suit was contested only by defendant No.1,
JAWALA RAM
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integrity of this document
Neutral Citation No. : 2023:PHHC:119956
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who pleaded in his written statement that though, family partition/settlement
was done in the year 1995, but he had compensated the plaintiff and
defendant No.2 in lieu of their share, and therefore, since then he is the
absolute and sole owner of the property, by virtue of the family settlement.
4. On the basis of pleadings raised by the parties, learned Trial
Court framed the following seven issues:-
"i. Whether the plaintiff is entitled to the decree of
declaration, as prayed for? OPP
ii. Whether the plaintiff is entitled to the decree of
partition of suit property, as prayed for? OPP
iii. Whether the plaintiff is entitled to the decree of
permanent injunction, as prayed for? OPP
iv. Whether the suit is not maintainable? OPD
v. Whether the plaintiff has no cause of action or locus-
standi to file the present suit? OPD
vi. Whether the plaintiff has suppressed the true and
material facts from the court? OPD
vii. What relief."
5. While analyzing the evidence led by both the sides, both the
Courts below observed that in regard to the pleaded family settlement of the
year 1995, there is no evidence brought on record by either of the parties.
Rather, in cross-examination, it is admitted by the plaintiff that he remained
out of country w.e.f. 1982 to 2003.
Taking into consideration the said part of admission, the Courts
below have held that plaintiff failed to prove his own pleadings regarding
JAWALA RAM
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Neutral Citation No. : 2023:PHHC:119956
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the family settlement in the year 1995, because as per his own admission,
plaintiff was not even in the country at the time of alleged family settlement.
6. On the other hand, no evidence was led by defendant No.1 also
for his plea that in the said family settlement, he had compensated the
plaintiff, and defendant No.2, qua their share in the house.
7. Considering the circumstances that both the sides i.e. the
contesting parties - plaintiff & defendant No.1, failed to prove their own
pleadings, prayer for declaratory decree has been declined.
However, considering the natural succession in favour of the
parties, the Courts below have held that plaintiff and defendants are entitled
to 1/4th share each, in the family property. Accordingly, preliminary decree
was passed. Findings given by learned First Appellate Court in paragraph
Nos. 13, 14, 15, & 16, are reproduced here-under:-
"13. Only short argument was raised regarding
exclusive possession over the suit property. The contention of
appellant/defendant no.1 is that he is in exclusive possession
over the suit property, in view of the fact that house in the suit
property was constructed by the appellant/defendant no.1 with
his personal earning and in the family settlement of the year
1995, the plaintiff and defendants no.2 and 3 have
relinquished their rights in the suit property and as such he
became sole owner of the same. Moreover, the plaintiff and
defendants no.2 and 3 were given cash in lieu of the property
after which they purchased other immovable properties.
14. So far as ownership is concerned, same now
cannot be brought in question because there is no counter
JAWALA RAM
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claim filed by the appellant/defendant no.1. It is not in dispute
that thereafter Ami chand was owner of the suit property who
has purchased vide sale deed Mark-PA. Therefore, plaintiff
and defendants no.1 to 3, being legal heirs of deceased Ami
Chand, have equal rights in the suit property.
15. Admittedly cross-examination of PW1 Balram
shows that he has admitted that he is not residing in the house
in dispute for the last 10 years. Defendant no.1 is residing in
the said house along with his family. He is residing in Virat
nagar, Model Town, Panipat and he has Voter Casd and
Ration Card on the aforesaid address. Defendant no.2 is also
residing in Virat Nagar, Panipat, for the last 11-12 years.
Hence, from the admission of plaintiff Balram, it is clear that
it is the defendant who is in possession of the suit property.
16. The learned Trial Court has held the possession
of defendant no. 1 rightly so. If the property joint and is in
possession of one person, it is considered to be possession of
all under the law and is subject to partition and this exactly as
the learned trial court has held. Accordingly, finding of
learned Trial Court on issues no.1 to 3 does not suffer from
any illegality and impropriety and therefore, the same are
affirmed."
8. I have gone through the findings recorded by the Courts below,
and am of the view that there is no illegality or perversity in the judgments
& decree passed by the Courts below, as parties have failed to prove their
JAWALA RAM pleadings, and rightly each one of them have been held entitled to their 1/4th
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share in the family property.
Even no question of law, much less, any substantial question of
law arises for consideration in the present appeal for interference in the
impugned judgments & decree passed by the Courts below.
Thus, the instant appeal being devoid of merits, stands
dismissed. The judgments & decree passed by both the Courts below are
affirmed.
Pending misc. application(s), if any, also stands disposed of.
(SANJAY VASHISTH)
JUDGE
September 12, 2023
J.Ram
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
JAWALA RAM
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integrity of this document
