Punjab-Haryana High Court
Dharam Singh vs Raj Bala And Ors on 11 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:033837
RSA No.2763 of 2018 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
111 RSA No.2763 of 2018 (O&M)
Reserved on : 20.02.2024
Date of Decision : 11.03.2024
Dharam Singh ....Appellant
VERSUS
Raj Bala & Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Sachin Mittal, Advocate and
Mr. Parth Sharma, Advocate for the appellant.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by the
defendant No.16-appellant against the judgment and decree dated
28.02.2014 passed by the Trial Court and the judgment and decree dated
06.12.2017 passed by the First Appellate Court whereby the suit of the
plaintiff-respondents for separate possession by partition and the counter-
claim of defendant No.2 have been decreed.
2. The brief facts relevant to the present case are that as per the
plaintiff-respondents the total land measures 53 Kanal 13 Marla situated in
Mauza Naharpur Kasan, Tehsil Gurgaon, District Gurgaon and plaintiff
Nos.1 to 3-respondents were joint owners in possession of the suit land
having 1/7 share each. It was alleged that plaintiff No.1-respondent sold her
share to defendant No.1 and plaintiff Nos.2 and 3-respondents sold their 2/7
integrity of this order/judgment.
2024:PHHC:033837
share to plaintiff No.4-respondent who was already owner in possession of
37/3219 share in the suit land and thus now plaintiff No.4-respondent had
6697/22533 share in the suit land. It was further alleged that except for the
land falling in Rectangle No.30 Killa No.10/1/1 measuring 3 Kanals, the rest
of the land had been acquired under the Land Acquisition Act, 1894 and that
some of the defendants and plaintiffs had constructed their residential houses
on the joint land. The plaintiff-respondents requested the defendants to get
the suit land partitioned by metes and bounds but they refused to do so,
hence the suit. The defendant No.16-appellant did not file a separate written
statement but adopted the written statement of defendant No.2. Defendant
No.2 in his written statement submitted that the whole suit land measuring
53 Kanal 13 Marla was put in a hotchpotch after a colony was laid out by
defendant No.1 and no part of Khasra No.30/10/1/1 was lying vacant and
unoccupied even prior to filing of present suit which could be sold and
therefore the purchases by plaintiff No.4-respondent from plaintiff Nos.2
and 3-respondents are illusionary and fictitious. The question of title is
involved in the suit. It was stated that entire land, except Khasra
No.30/10/1/1 (3-0), had been acquired by the Haryana Government much
prior to the institution of the suit and the co-owners thereof had also received
compensation and since the land of Khasra No.30/10/1/1 was fully
constructed one the same was indivisible even on the day of institution of the
suit. The plaintiff-respondents filed replication to the written statement of
defendant No.2 wherein contents of the plaint were reiterated and those of
the written statement were controverted. The defendant No.2 also filed a
counter claim.
integrity of this order/judgment.
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3. The Trial Court framed the following issues :
1) Whether the plaintiffs are in joint possession of the
suit property to the extent of 1/7th share each as co-
owner as alleged ? OPP
2) If issue No.1 is proved, whether the plaintiffs are
entitled to get the suit property partitioned by metes and
bounds as prayed for ? OPP
2A) Whether the plaintiff No.4 is joint owner to the
extent of 6697/22533 share in the land in suit ? If so, to
what effect ? OPP4
3) Whether the defendant No.2 is entitled to a decree
for permanent injunction as prayed for and the counter
claim of the defendant No.2 deserves to be allowed ?
OPD No.2
4) Whether the suit of the plaintiffs is not
maintainable in the present form ? OPD
5) Whether the suit is barred under Order 2 Rule 2
CPC ? OPD
6) Whether the suit is bad for mis-joinder and non-
joinder of necessary parties ? OPD
7) Whether the plaintiffs are estopped by their own
acts and conduct to file the present suit ? OPD
8) Whether the plaintiffs have suppressed the true and
material facts and not come to the court with clean
hands ? OPD
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2024:PHHC:033837
9) Whether the plaintiffs have no cause of action to
file the present suit ? OPD
10) Whether the suit is barred by limitation? OPD
11) Relief.
4. The Trial Court vide judgment and decree dated 28.02.2014
decreed the suit of the plaintiff-respondents and the counter-claim of
defendant No.2. A preliminary decree for partition of the suit property was
passed declaring the share of plaintiff No.4-respondent to the extent of 17
Marla 6.8 Sarsai, the share of defendant No.16-appellant to the extent of 1
Marla 4.9 Sarsai and the share of defendant No.2 to the extent of 13 Marla in
the suit property bearing Rectangle No.30 Killa No.10/1/1 measuring 3
Kanal. The plaintiff-respondents were restrained from interfering in the
exclusive possession of the residential house of defendant No.2 till final
partition of the suit land. Aggrieved by the said judgment and decree dated
28.02.2014 an appeal was preferred by the defendant No.16-appellant which
appeal was dismissed vide judgment and decree dated 06.12.2017. Hence,
the present regular second appeal.
5. Learned counsel for the defendant No.16-appellant contended
that the judgements and decrees of the Courts below are illegal and
erroneous and that the suit as well as the counter-claim deserved to be
rejected. It is submitted that suit property already stood partitioned by metes
and bounds and the co-sharers were in their respective possessions and
therefore there was no occasion to decree the suit and the counter-claim.
6. Heard counsel for the defendant No.16-appellant and perused
the paperbook.
integrity of this order/judgment.
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7. A perusal of the impugned judgements and decrees shows that
though it was argued on behalf of the defendant No.16-appellant that the suit
land already stood partitioned, however there is nothing on the record to
even remotely suggest the date on which the partition had taken place and
amongst whom. The revenue record is also silent regarding any earlier
partition. Rather, the Trial Court has recorded in para 17 that "Whereas
learned counsel for the defendant No.16 argued that the defendant No.16 is
having share in the suit land vide sale deed bearing vasika no.9270 dated
28.7.2004 Ex.DW16/3 (DW2/3). He submitted that he has no objection if the
partition is made". Even before this Court the counsel for the defendant
No.16-appellant is unable to point to any evidence from which it can be
deduced that the suit land already stood partitioned. No other point was
argued.
8. In view of the above, I do not find any merits in the present
appeal. No question of law, much less any substantial question of law, arises
in the present case. The appeal, being devoid of any merits, is accordingly
dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
11.03.2024 JUDGE
Yogesh Sharma
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
