Punjab-Haryana High Court
Gurdip Singh And Anr vs Sher Singh And Ors on 6 March, 2024
Neutral Citation No:=2024:PHHC:032730
2024:PHHC:032730
RSA-4273-2018 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
103 RSA-4273-2018 (O&M)
Date of decision:06.03.2024
Gurdip Singh and another ...Appellants.
Versus
Sher Singh and others ....Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. B.S. Jaswal, Advocate
for the appellants.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by
appellants/ defendants against the concurrent findings recorded by both the
Courts below, vide which the suit of the plaintiffs for separate possession by
way of partition was decreed, whereas relief with regard to decree of
permanent injunction was declined.
2. The plaintiffs filed a suit for possession by way of partition by
meets and bounds of an area measuring 51 Marlas as detailed in the head
note of the plaint and for permanent injunction for restraining the
defendants from selling or alienating the suit land in any manner.
3. Brief facts of the case as per plaint are that the plaintiffs Sohan
Singh, Mohan Singh and Mohinder Singh were the original owners of the
suit land, who have since died. They had sold their shares in the suit land as
shown in the jamabandies for the years 1967-68, 1972-73, 1977-78, 1987-
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88, 1992-93 and 1997-98. The plaintiffs had purchased 8 Marlas of land
from Sohan Singh vide sale deed dated 26.07.2000 and their names have
been incorporated in the jamabandi for the year 1997-98. It was alleged that
always there remained dispute over the partition of the property. Whenever,
the plaintiffs tried to raise constructions over the 8 Marlas of property, then
one or the other defendants raised objections. So, the plaintiffs requested the
defendants to separate their shares from the total property and to deliver the
possession of the same to them. But defendants refused to do so. Defendants
No.34 to 39 are successors of Mohan Singh and Mohinder Singh. Mohan
Singh and Mohinder Singh had sold their entire shares during their life time
and there remained nothing to be inherited by the defendants No.34 to 39,
so these defendants were impleaded as proforma defendants and no relief
was claimed against them. It was also alleged that the suit property is still
joint and has not been partitioned and all the co-sharers are owners in joint
possession over the suit property. Previously, suit for partition of the total
land was filed against defendants No.1 to 15 and 34 to 39 only regarding the
Khasra no.458/1, 458/2, 458/3, 458/4 and 458/5 but inadvertently Khasra
No.457 could not be joined in that suit and that suit for partial partition had
to be withdrawn. As the defendants refused to admit the claim of the
plaintiffs, hence the present suit was filed.
4. The suit of the plaintiffs for separate possession by way of
partition was decreed, whereas relief with regard to decree of permanent
injunction was declined by the trial Court, vide judgment and decree dated
20.10.2015. The appeal preferred by the appellants/ defendants before the
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First Appellate Court was dismissed, vide judgment and decree dated
04.12.2017. Hence, the present Regular Second Appeal has been filed by
the appellants/ defendants.
5. Learned counsel for the appellants/ defendants has contended
that both the Courts below have erred in holding that the present suit is not
barred under Order 2 Rule 2 CPC. Once it is established that their earlier
suit was dismissed, which related to the same subject matter, so the
subsequent suit of the same nature and same cause of action does not lie and
is barred under the law. He has also contended that the plaintiffs are seeking
the partial partition which is not permissible under law and they have not
joined other khasra numbers such as Khasra No.37/5 and 37/7 out of which
some portion is of gair mumkin nature and is part of the khata of which
Khasra No.458 is a part. So, the plaintiffs have not come to the Court with
clean hands and have concealed material facts from the Court with regard to
other gair mumkin property.
6. I have heard learned counsel for the appellants and gone
through the record thoroughly.
7. The facts regarding dismissal of the earlier suit for partition that
had been filed by the contesting respondents is not disputed. The judgment
and decree in the said earlier suit has been proved on record as Ex.P3. The
perusal of the same reveals that the earlier suit was filed by the co-sharers
for partition of the land comprised in Khasra No.457 only, but the present
suit for partition has been filed with regard to land comprised in Khasra
No.457 and 458. The said suit was dismissed not only on account of partial
partition, but as the plaintiffs in that suit failed to prove their ownership to
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the extent of their share in the suit property, as alleged by them.
8. In the instant suit, the contesting respondents have sought the
partition of property comprised in Khasra no.458/1, 458/2, 458/3, 458/4 and
458/5, meaning thereby that the subject matter in the earlier and the present
suit is not the same. So the present suit is not hit by the principle of
resjudicata and is not barred under Order 2 Rule 2 CPC. From the
jamabandi for the year 2012-13 Ex.P6, it is proved that the respondents are
joint share holders in Khasra no.458/1, 458/2, 458/3, 458/4 and 458/5 and
as such, they are entitled to seek the relief of partition qua the said property.
9. Nothing has been brought on record by the defendants to prove
that it is a partial partition and the other relevant khasra numbers where they
are having the joint ownership have not been joined, so the present suit
cannot be held to be bad for partial partition.
10. For the reasons recorded above, the present Regular Second
Appeal fails as it does not raise any question of law much less substantial
question of law.
11. Appeal stands dismissed being bereft of any merits.
12. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
06.03.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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