Punjab-Haryana High Court
Ram Dass vs Tek Chand And Others on 29 October, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:141716
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-1108-2019 (O&M)
Reserved on : 21.10.2024
Pronounced on : 29.10.2024
Ram Dass ....Appellant
VERSUS
Tek Chand (deceased) & Ors. ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Ms. Vamika Johar, Advocate for
Mr. Pritam Singh Saini, Advocate for the appellant.
ALKA SARIN, J.
CM-2687-C-2019
1. For the reasons mentioned therein, the application for
condoning the delay of 8 days in filing the present appeal is allowed. The
delay of 8 days in filing the present appeal is condoned.
RSA-1108-2019
2. The present regular second appeal has been preferred by
defendant No.1-appellant challenging the judgments and decrees dated
20.03.2015 and 02.07.2018 passed by the Trial Court and the First Appellate
Court respectively.
3. Brief facts relevant to the present lis are that the plaintiff-
respondent No.1 filed a suit for possession by way of partition of the suit
land measuring 48 Kanals 17 Marlas. It was averred by the plaintiff-
respondent No.1 that the suit land was joint between the parties and that the
plaintiff-respondent No.1 had purchased his share from Sunita Rani (wife of
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Karam Chand) and Smt. Shakuntla Devi (wife of Ram Kishan) vide
registered sale deed dated 06.02.2002 and mutation had also been sanctioned
in his favour. The share of the plaintiff-respondent No.1 was 100/977 while
the rest of the suit land belonged to the other co-sharers. As per the plaintiff-
respondent No.1 the suit land had not been partitioned as yet by any court of
law and the consent of the parties. It was averred that the defendants were
cunning persons who wanted to alienate the land more than their share with
specific portions and wanted to raise construction on the joint land without
getting it partitioned. Hence, the suit. The suit was contested by several of
the defendants including the defendant No.1-appellant who is the real
brother of the plaintiff-respondent No.1. In the written statement preliminary
objections regarding maintainability, locus standi, cause of action, estoppel,
mis joinder and non-joinder of parties, suppression of material facts,
deficiency of court fee and lack of jurisdiction etc. It was the stand taken that
the suit land had already been partitioned by way of oral partition between
the share-holders and was not joint. It was alleged that the plaintiff-
respondent No.1 was never in possession of the suit land and that all the co-
shares were in possession of their respective shares and were enjoying the
same by raising construction. It was further stated that the defendants were
exclusive owners in possession of their respective shares as per the partition
and that the suit land had been partitioned by the consent of the parties and
every co-sharer was in specific possession of his share. Both the brothers i.e.
the plaintiff-respondent No.1 and the defendant No.1-appellant were
cultivating their land which came to their share. No replication was filed by
the plaintiff-respondent No.1.
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4. On the basis of the pleadings of the parties the following issues
were framed :
1. Whether the plaintiff is entitled for the relief of
possession by way of partition of gair mumkin land
measuring 5 kanal 0 marla of plaintiff out of the total
land measuring 48 kanal 17 marla (as detailed in the
head note of the plaint) as prayed for ? OPP
2. Whether the plaintiff is entitled for the relief of
permanent prohibitory and mandatory injunction to the
effect that the defendants be restrained from alienating
the land more than their share or specific portion and
from raising any construction over the suit land without
getting the same partitioned, as prayed for ? OPP
3. Whether the suit of plaintiff is not maintainable and
he has no locus standi or cause of action to file or
maintain the present suit ? OPD
4. Whether the plaintiff is estopped from filing the
present suit by his own act and conduct ? OPD
5. Whether this court has got no jurisdiction to try or
entertain the present suit ? OPD
6. Whether the suit is bad for mis-joinder and non-
joinder of necessary parties ? OPD
7. Whether the plaintiff has concealed the true and
material facts from the court ? OPD
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8. Whether the suit is bad for non-affixation of proper
court fee on the relief claimed ? OPD
9. Relief.
5. The Trial Court decreed the suit vide judgment and decree
dated 20.03.2015 and passed a preliminary decree. Aggrieved by the
judgment and decree dated 20.03.2015 an appeal was preferred by the
defendant No.1-appellant as well another appeal by some other defendants.
However, both the appeals were dismissed by the First Appellate Court vide
a common judgment dated 02.07.2018. Hence, the present regular second
appeal by defendant No.1-appellant.
6. The learned counsel for the defendant No.1-appellant would
contend that both the Courts have erred in passing a preliminary decree of
partition. It is urged that the suit land already stood partitioned, and all the
parties were in possession of their respective shares and therefore the suit
deserved to be dismissed.
7. Heard.
8. In the present case the stand of the defendant No.1-appellant
was that the suit land already stood partitioned among the co-owners by way
of an oral partition and that all the co-owners were in possession of their
respective shares. However, apart from the oral testimonies of the witnesses
to buttress the plea of an oral private partition, no other evidence was
produced by the defendant No.1-appellant. Although co-owners of land can
privately partition their shares, the same has to be recorded in the revenue
record also. In case private partition had been effected, the revenue officers
would have allotted a separate khewat to each co-owner. A partition is
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recorded by allotting separate khewats thereby indicating severance of the
joint status of parties. There is nothing forthcoming to prove any such
severance of status or private partition. The Trial Court recorded that "But
there is no evidence on record to show that any partition took place between
the previous owners of the suit land. There is no evidence to show as to
when the alleged partition took place between the parties". The First
Appellate Court also found that "A perusal of copy of sale deed No.3285
dated 06.02.2002 (Ex.PW1/E) shows that plaintiff Tek Chand (since
deceased) had purchased the land measuring 5 kanal 0 marla i.e. 100/977
share out of the land measuring 48 kanal 17 marla of khewat No.1438 and
khatoni No.1838 from Sunita Rani and Smt. Shakuntla Devi for the sale
consideration of Rs.1,06,500/-. A further perusal of jamabandi for the year
2006-07 (Ex.PW1/B) shows that the suit land measuring 48 kanal 17 marla
is gair mumkin land and the same is joint between the co-sharers and
plaintiff Tek Chand (since deceased) is joint owner in possession of the suit
land to the extent of 100/977 share. From the aforesaid documentary
evidence led by the plaintiffs, it is clearly evident that the suit land is joint
between the parties and the same has not been partitioned by any court of
law. Even there is no evidence on record to show that any oral partition has
ever taken place between the previous owner of the suit land". Learned
counsel for the defendant No.1-appellant has been unable to point to any
cogent and reliable evidence on the record to prove the allegation of the suit
land having already been partitioned. No other point was argued.
9. In view of the above, I do not find any merit in the present
appeal. No question of law, much less any substantial question of law, arises
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in the present case which requires determination by this Court. The appeal,
being devoid of any merits, is accordingly dismissed. Pending applications,
if any, also stand disposed off.
( ALKA SARIN )
29.10.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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