Punjab-Haryana High Court
Santosh Kumari & Anr vs Urmila Kumari & Ors on 16 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:051237
SAO-27-2010 (O&M) & 2024:PHHC:051237
RSA-3948-2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
115
1. SAO-27-2010 (O&M)
Date of decision: 16.04.2024
SANTOSH KUMARI & ANR ..Appellants
Versus
URMILA KUMARI & ORS ..Respondents
2. RSA-3948-2011 (O&M)
SANTOSH KUMARI & ANR ..Appellants
Versus
MOHINDER PARTAP & ANR ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Chetan Mittal, Sr. Advocate
with Mr. Kunal Mulwani, Advocate
and Mr. Ritvik Garg, Advocate
for the appellant No.1 (in SAO-27-2010 & RSA-3948-2011).
Mr. Sudhir Aggarwal, Advocate
and Mr. Ishan Aggarwal, Advocate
for appellant No.2 (in RSA-3948-2011).
Mr. Akshay Bhan, Sr. Advocate
with Mr. Santosh Kumar Sharma, Advocate
for respondent No.1 to 8 & 12.
Mr. Amit Jain, Advocate
for respondent No.13 to 15 (in SAO-27-2010).
Mr. J.S. Pannu, AAG, Haryana.
ANIL KSHETARPAL, J(Oral)
1. Brief Facts of the case:-
1.1 With the consent of the learned counsel representing the parties,
these two connected appeals, SAO-27-2010 and RSA-3948-2011, shall stand
disposed of by a common order.
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SAO-27-2010 (O&M) & 2024:PHHC:051237
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1.2 The learned counsel representing the parties are ad idem that the
main dispute between the parties shall stand decided once SAO-27-2010 is
decided. Hence, it is taken as the lead case.
1.3 In order to give the factual background of the events, relevant
facts, in brief, are required to be noticed.
1.4 A total land measuring 753 kanal and 5 marlas was owned by
various owners including four brothers namely Sh. Hanuman Parshad, Sh.
Girraj Parshad, Sh. Mathura Parshad and Sh. Dwarka Parshad sons of Sh.
Ram Chander. In the first proceedings for partition, 536 kanal and 14 marlas
land was finalized and thus four brothers were allotted 86 kanal land in equal
share. Thus, the share of two brothers namely Sh. Hanuman Parshad and Sh.
Girraj Parshad came to 43 kanal. The aforesaid partition is final and binding
between the parties.
1.5 The proceedings for partition of the remaining land measuring
216 kanal and 11 marlas is pending before the Court of Assistant Collector.
The appellants before this Court claim to be the subsequent purchasers of 54
kanal and 7 marlas land derived from Sh. Hanuman Parshad and Sh. Girraj
Parshad vide sale deed dated 03.05.1978. It is claimed that Sh. Hanuman
Parshad and Sh. Girraj Parshad sold 54 kanal and 7 marlas land out of land
measuring 215 kanal and 7 marlas to the appellants namely Smt. Santosh
Kumari and Smt. Saroj Gupta. These appellants raised the question of title in
the partition proceedings. The Assistant Collector, Ist Grade, sought report
from the Girdawar of the area. After receipt of the Girdawar's report, the
objections with regard to the question of title were dismissed and it was held
that Smt. Santosh Kumari and Smt. Saroj Gupta shall only be entitled to 25
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Neutral Citation No:=2024:PHHC:051237
SAO-27-2010 (O&M) & 2024:PHHC:051237
RSA-3948-2011 (O&M) -3-
kanal and 5 marlas, equivalent to the share their vendors were entitled to.
The appellants filed appeal before the Additional District Judge under
Section 117 (2) (e) of the Punjab Land Revenue Act, 1887. The same has
been dismissed by the Court vide judgment dated 02.04.2010.
2. Discussion by this Court:-
2.1 This appeal has been filed against the order passed by the
Additional District Judge.
2.2 On 21.02.2024, after hearing the learned counsel representing
the parties, the following order was passed:-
"Heard the learned counsel representing the parties at
some length.
Admittedly, the total joint holding of four brothers,
namely Hanuman Parshad, Girraj Parshad, Mathura
Parshad and Dwarka Parshad along with certain other
co-sharers was 753 kanals and 5 marlas. It has been
projected before this Court that at the first instance, the
land measuring 536 kanals and 14 marlas was
partitioned in the year 1973 and an instrument of
partition was prepared. Thus, the case of the appellants is
that Hanuman Parshad, Girraj Parshad, Mathura
Parshad and Dwarka Parshad were allocated the land
measuring 58 kanals and 5 marlas, whereas the land
measuring 216 kanals and 11 marlas with proportionate
share of these four brothers remained.
On the other hand, it is the case of the defendants
that in the year 1973, Hanuman Parshad and Girraj
Parshad were allocated the land measuring 58 kanals
and 5 marlas and therefore, their share in the remaining
land will come to 25 kanals and 5 marlas. On the one
hand, the respondents are relying upon mutation for final
partition in the year 1973, whereas on the other hand, the
learned counsel representing the appellants relies upon
goshwara.
In this case, the document will be the instrument of
partition drawn by the Court of Assistant Collector 1st
Grade while partitioning the land measuring 536 kanals
and 14 marlas.
Keeping in view the aforesaid facts, the learned
counsel representing the parties as well as the learned
State counsel, who is present in the Court, are requested
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SAO-27-2010 (O&M) & 2024:PHHC:051237
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to produce a copy of the instrument of partition on the
next date of hearing.
List on 29.02.2024, in the urgent list.
A photocopy of this order be placed on the file of
another connected case."
2.3 Thereafter, the directions was issued to the State of Haryana to
produce the copy of the instrument of partition in order to clarify the
possession. In deference to the aforesaid directions, the instrument of
partition has been produced. From the instrument of partition, it becomes
evident that all the four brothers were allotted the equal share in the land
measuring 86 kanal. Thus, two brothers namely Sh. Hanuman Parshad and
Sh. Girraj Parshad got 43 kanal jointly.
2.4 Thus, it is evident that the vendors of the appellant will get
equal share with their remaining two brothers in the land measuring 216
kanal and 11 marlas, which is sought to be partitioned. Their share comes to
25 kanal and 5 marlas only and not 43 kanal.
2.5 The learned counsel representing the appellants contends that
the share of two brothers in the total land is 83 kanal and they got 43 kanal in
the year 1973, hence, they will get remaining 40 kanal.
2.6 This Court has considered the submissions of the learned
counsel representing the parties.
2.7 The argument put forth by the learned counsel representing the
appellant has no substance because not only Halqa Girdawar, Assistant
Collector, Ist Grade as well Additional District Judge have concurrently
found that the share of the appellants or their predecessor would only be 25
kanal and 5 marlas. In the previous partition, they were granted share
according to their entitlement and there was no deficiency.
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Neutral Citation No:=2024:PHHC:051237
SAO-27-2010 (O&M) & 2024:PHHC:051237
RSA-3948-2011 (O&M) -5-
2.8 In RSA-3948-2011, the plaintiffs assail the correctness of the
concurrent findings of fact arrived at by the Courts below while dismissing
their suit for grant of permanent injunction. In this suit, the plaintiffs are
claiming to be owners in possession of 54 kanal and 16 marlas of land, and
as has already been found, they are only entitled to 25 kanal and 5 marlas.
Moreover, decree for permanent injunction cannot be passed because the
partition proceedings are already pending.
3. Decision:-
3.1 Hence, no ground to interfere in both the appeals is made out.
3.2 Dismissed accordingly.
3.3 The Court Master is requested to return the record to Sh. J.S.
Pannu, Assistant Advocate General, Haryana.
3.4 All the pending miscellaneous applications, if any, are also
disposed of.
April 16th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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