Punjab-Haryana High Court
Suresh Kumar vs Naresh Kumar on 1 April, 2024
Neutral Citation No:=2024:PHHC:047178
135. 2024:PHHC:047178
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.496 of 2024 (O&M)
Date of decision: 01.04.2024
Suresh Kumar .... Appellant
Versus
Naresh Kumar and others .... Respondents
CORAM: HON'BLE MR. JUSTICE GURBIR SINGH
Present: Mr. Rajender Kumar, Advocate, for the appellant.
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GURBIR SINGH, J.
1. Present regular second appeal has been filed by defendant
No.1 against the judgment and decree dated 22.12.2023 passed by learned
Additional District Judge, Panchkula whereby appeal filed by him against
the judgment and decree dated 24.05.2017 passed by learned Civil Judge
(Junior Division), Kalka, has been dismissed.
2. Brief facts that are necessary for the disposal of present appeal
are that respondents No.1 to 4-plaintiffs filed a suit for separate possession
by way of partition of suit property i.e. land measuring 3 biswas as
mentioned in the head note of the plaint, on the ground that Bacchu Ram
had died intestate leaving behind three sons and two daughters. Defendant
No.1-appellant herein and defendant No.2 filed a joint written statement
pleading that appellant constructed the house on the land in dispute in the
year 1981 with the consent of his late father as he had looked after his
father and mother throughout their lifetime. Bachhu Ram had died in the
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year 1992 and suit was filed in 2015 i.e. after 23 years of the demise of
Bachhu Ram. Defendant/respondents No.6 and 8 admitted the suit of the
plaintiffs.
2.1 On the basis of evidence led on the file, the trial Court decreed
the suit and preliminary decree for separate possession by way of partition
of the suit property was passed in favour of plaintiff Nos.1 and 2 i.e.
respondents No.1 and 2 as well as defendants No.1 to 3 i.e. appellant and
respondents No.6 and 8 that they are owner to the extent of 1/5th share each
being legal heirs of Bachhu Ram. The preliminary decree passed on
24.05.2017 reads as under:-
" ..... It is ordered that the suit of the plaintiff is hereby
decreed with costs to the effect that a preliminary decree for
separate possession by ways of partition of the suit property is
hereby passed in favour of plaintiff no.1 & 2 as well as
defendants no.1 to 3 in equal share, meaning thereby, 1/5
share of each legal heirs i.e. 1/5th share each of (a) plaintiff
no.1 Naresh Kumar, (b) plaintiffs no.2, 3, 4, (on behalf of the
late husband Sh. Ramesh Chand, (c) defendant no.1 Suresh
Kumar (d) defendant no.2 Sushma, (e) defendant no.3 Kamli.
Decree sheet be prepared accordingly. File be consigned to
the record-room after due compliance."
Appeal filed by defendant No.1 was dismissed. Aggrieved, defendant No.1
has approached this Court by way of present appeal.
3. Learned counsel for the appellant has argued that Shri Bachhu
Ram was the owner of the land to the extent of 6 biswas of land vide sale
deed dated 24.08.1979 and out of said land, he sold 3 biswas vide sale deed
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dated 27.12.1984 and gave the sale proceeds to the plaintiffs and remaining
land of 3 biswas was given to the defendants. Thus, he during his lifetime
had settled the entire issue, so the plaintiffs have no concern with the suit
land.
4. I have heard learned counsel for the appellant and have gone
through the file.
5. Neither there is any document nor it is mentioned in the sale
deed dated 27.12.1984 that sale proceeds were being given to the plaintiffs
by way of adjustment against the property being inherited by them. On the
death of Bachhu Ram, mutation of suit property was sanctioned in favour of
Ram Murti-wife and in the name of sons and daughters of Bachhu Ram.
Except the oral version of the defendants, neither there is any evidence on
record nor any writing that suggest the suit property was exclusively given
to the defendants. Oral version is not rightly believed by the courts below.
A co-sharer has every right to get his share separated by way of partition.
6. The courts below have recorded concurrent findings of facts.
There is neither any misreading of evidence nor any substantial question of
law is involved in the present appeal. The same is without any merit and is
dismissed accordingly.
7. Pending application, if any, shall also stand disposed of.
(GURBIR SINGH)
JUDGE
April 01, 2024
sanjeev
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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