Punjab-Haryana High Court
Sukhdev Raj vs Hans Raj And Others on 5 March, 2024
Neutral Citation No:=2024:PHHC:033856
RSA-1060-2020 (O&M) 1 2024:PHHC:033856
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1060-2020 (O&M)
Pronounced on:05.03.2024
Sukhdev Raj
...Petitioner
Versus
Hans Raj and others
...Respondents
CORAM: HON'BLE MRS JUSTICE RITU TAGORE
Present: Ms. Kiranpreet Kaur, Advocate (Legal Aid Counsel) and
Mr. Sumit Sharma, Advocate (Legal Aid Counsel)
for the appellant.
****
RITU TAGORE, J. (Oral)
1. This is an appeal against the concurrent findings recorded by
the learned Courts below, dismissing the suit of petitioner for possession by
way of partition of a house, detailed in the plaint.
2. For convenience, the parties are referred to as per their original
status before the learned trial Court.
3. The plaintiff, Sukhdev Raj, brought the suit for possession by
way of partition of a house measuring 175 Sq . Yards, bearing No.3233/14
situated in Gali No 7, Wadda Haripura, Amritsar with the boundaries as
detailed in the head note of the plaint.
4. In brief, plaintiff pleaded that parties to the suit are owners and
in possession of their respective shares in the house in dispute. Plaintiff is in
possession of a room measuring 8'6"X13'x4", situated at backside of the
room of Dev Raj (defendant No.4). The disputed house is jointly owned by
the parties to the suit. The plaintiff alleges that defendants are querulous
individuals, who frequently engage in disputes with him without cause. In an
effort to maintain peace, he wants to separate his possession. He requested
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the defendants to partition the house by metes and bounds but they have
refused, necessitating him to file the suit.
5. As evident from the judgment of trial Court, defendant No.1
appeared and filed his written statement denying all the averments made by
the plaintiff. Defendants No.2 and 4 did not appear, while defendant No.3
was reported to have died, with no LRs appearing on his behalf to contest
the suit.
6. From the pleadings of the parties, learned trial Court framed the
following issues:-
"1. Whether the plaintiff is entitled for possession by way of
partition as prayed for? OPP
2. Relief."
7. To support his version, Sukhdev Raj, the plaintiff appeared as
PW-1, and reiterated the version of the plaint. Rakesh Kumar appeared as
PW-2 and supported the version of the plaintiff. To counter the plaintiff's
version, Soma Wanti wife of Hans Raj appeared as DW-1 and testified
according to the stance outlined in the written statement.
8. Upon appraisal of the evidence, learned lower Court observed
that plaintiff failed to substantiate his averments by his own material
admissions and failed to establish that he is in joint ownership and
possession of the disputed house.
9. The learned counsel for the petitioner contended that learned
Courts below failed to properly appreciate the evidence presented on record.
The learned Courts failed to note that parties to the lis are real brothers who
inherited the disputed house from their father Amin Chand. The Courts
below also failed to appreciate a material admission made by Soma Wanti-
DW-1, testifying that plaintiff, alongwith defendants, his brothers jointly
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reside in the disputed house. It is stated that there is no better evidence to a
fact than the admission. Learned counsel stated that learned Courts below
seriously erred in ignoring the admitted factual position with regard to joint
ownership and possession of the disputed house and wrongly focused on the
statement made by the plaintiff. Furthermore, it is argued that suit for
partition should not be dismissed due to non-joinder of the parties, as
necessary parties can always be impleaded later. Learned counsel stated that
there was no justification to deny the relief of partition and prayer is made to
set aside the judgments of Courts below and suit of the plaintiff be decreed.
10. I have heard learned counsel for the petitioner and gone through
the paper book and hold that the Courts below have rightly non-suited the
appellant for the reasons stated below.
11. Firstly, there is a categorical admission made by the plaintiff that
he is seeking partition of the house bearing No.3233/14 and in the same
breath admitted that aforementioned house, for which he is seeking partition,
is owned by the neighbours. It is appropriate to reproduce the findings of
learned trial Court recorded in this regard, wherein cross-examination of the
plaintiff has been reproduced verbatim. The observations of the learned trial
Court as contained in para No.12 are as under-
"After considering the same, this Court have noticed that
plaintiff has given his residential address stating resident of house no.
3232, Gali No.7, Wadda Haripura, Amritsar. From the head note of
plaint, it is clear that, the plaintiff has sought partition of house no.
3233/14 meaning thereby both the house no. 3232 and 3233/14 are
different properties. In para no. 1 of the plaint, the plaintiff pleaded that
he alongwith defendants is owner in possession of the house detailed in
the head note of the plaint. There is no pleading in the plaint that how the
plaintiff and defendants became owners of the house bearing no.3233/14.
The plaintiff himself appeared as PW-1 and also examined PW-2 Rakesh
Kumar. Except the bald statements of plaintiff and PW-2 there is no other
evidence on the file from which it can be opined that the plaintiff and
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defendants are joint owner of the property in dispute. It is relevant to see
the cross-examination of plaintiff Sukhdev Raj which is reproduced as
under:-
"I have not mentioned the exact measurement of property in
dispute in my affidavit XXX we are seven brother and sisters. All
are married. I am not in possession of property in dispute. XXX
I have not placed on file any ownership document of the property
in dispute. It is correct that in the plaint suit property is described
as 3233/14 which is the house of neighbourer. Neither I nor Hans
Raj is in possession over house bearing no. 3233."
12. Secondly, the plaintiff also made an unequivocal admission that
he has seven brothers and sisters. The Courts below categorically observed
that plaintiff did not implead all his brothers and sisters the co-sharers, in the
disputed house, who are necessary parties to be impleaded in a suit for
partition. Law is settled that in a suit for partition all the co-sharers are
necessary parties. They must be impleaded in a suit for partition. On this
score the suit of the plaintiff was defective and was not maintainable. To my
view, the learned Courts below have rightly dismissed the suit of the
plaintiff on this basis.
13. Thirdly, the plaintiff when filed the suit for partition, he recorded
his residential address as house No.3232, Gali No.7, Wadda Haripura,
Amritsar and sought partition of a house No.3233/14. In the plaint plaintiff
claimed ownership and possession of the house mentioned in the head-note
of the plaint along-with other defendants. Both the Courts noted that plaintiff
made no reference in the pleadings and failed to explain how he and other
defendants became owner of house No.3233/14 except making the bald
statement. The learned Courts below, considering the admission of the
plaintiff (as highlighted above) and in absence of evidence regarding
ownership and possession of the plaintiff of the disputed house, answered
the relief against him. The learned counsel for the plaintiff also failed to
show to this Court any document establishing the ownership and possession
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of the plaintiff over the disputed house, bearing No.3233/14 regarding which
partition has been sought. Consequently, learned Courts below rightly
concluded that plaintiff failed to produce cogent and reliable evidence to
discharge the onus of issue No.1 which heavily rested upon him.
14. When confronted with the deposition of the plaintiff as
reproduced above and relied by the learned Courts below, learned counsel
for the plaintiff, failed to identify any discrepancies in the same.
Furthermore, during course of arguments, learned counsel for the plaintiff
failed to point out any misreading or misinterpretation of the evidence by the
learned Courts below before non-suiting the plaintiff (appellant). In view of
above discussion, it is held that the learned Courts below rightly appreciated
the evidence and dismissed the suit of the plaintiff.
15. All these factors taken together, makes no ground to form a
different opinion to bring the findings of the learned Courts below within the
realm of perversity or absurdity.
16. For the reasons aforementioned, I do not find any illegality or
perversity, in the concurrent findings, which are based on application of oral
and documentary evidence. No ground for interference is made out much
less involvement of any substantial question of law.
17. Resultantly, there is no merit in the appeal and is, hereby,
dismissed.
18. Pending applications, if any, also stands disposed of
accordingly.
(RITU TAGORE)
JUDGE
05.03.2024
Rimpal
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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