Punjab-Haryana High Court
Sarwan Kumar vs Parkash Chand & Anr on 19 January, 2026
RSA Nos. 2593-2014 (O&M) and
3564-2019 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
214 Date of decision: 19.01.2026
1. RSA-2593-2014 (O&M)
Sarwan Kumar ...Appellant(s)
Vs.
Parkash Chand and another ...Respondent(s)
AND
2. RSA-3564-2019 (O&M)
Sarwan Kumar ...Appellant(s)
Vs.
Chaman Lal and another ...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. N.C.Kinra, Mr.Harsh Kinra, and
Ms. Apoorva Kinra, Advocates for
the appellant in both RSA.
Mr. Chetan Bansal, Advocate
for respondent No.2 in RSA-2593-2014 and
for respondent No.1 in RSA-3564-2019.
***
NIDHI GUPTA, J.
RSA-2593-2014 (O&M) Present second appeal has been filed by the plaintiff against the concurrent judgments and decrees of the learned Courts below; whereby Civil Suit No. 94 dated 16.08.2003 filed by the appellant for DIVYANSHI 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -2- declaration with consequential relief of permanent injunction, has been dismissed by both Courts below.
RSA-3564-2019 (O&M) Present second appeal has been filed by the plaintiff against the concurrent judgments and decrees of the learned Courts below; whereby Civil Suit No. 568 dated 08.06.2011 filed by the appellant for permanent injunction, has been dismissed by both the Courts below.
2. Both the above said appeals are being disposed of by this common judgment as both are in respect of the same suit land; between the same parties; and facts and issues involved in both the appeals are identical. Vide order dated 25.07.2019, Predecessor Bench of this Court had directed in RSA-3564-2019 that both the appeals be heard together. For the sake of facility, facts are being drawn from RSA-2593-2014 titled as "Sarwan Kumar vs. Parkash Chand and another."
3. The facts as pleaded by the appellant in the plaint was that the suit property measuring 206 sq.yds. was purchased by the plaintiff and defendant No.1 and one another brother, namely, Gian Chand from its previous owner Smt. Shanti Devi vide registered Sale Deed dated 16.01.1990. Thereafter, construction on the suit property was raised by all the three brothers. It was contended that since the property was not partitioned, nobody had the right to alienate or dispose of the same in favour of anybody. However, defendant No.1 has sold property in question to defendant No.2 vide Sale Deed dated 29.07.2003 without DIVYANSHI consent and will of the plaintiff and without the partition of the 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -3- property. Thus, the said Sale Deed dated 29.07.2003 was illegal, null and void. It was further alleged in the plaint that the defendant No.1 had sold more than his share in the suit property to defendant No.2. It was further alleged that defendant No.2 is trying to make addition, alteration or construction in the suit property, which could not be permitted. Plaintiff had requested defendants not to do so but to no effect. Accordingly, present Civil Suit No. 94 dated 16.08.2003 was filed seeking declaration to the effect "that the sale deed dated 29.7.2003 executed by the defendant No.1 in favour of the defendant No.2 is illegal, null and void, unlawful and carries no value in the eyes of law, as the property measuring 206 Sq. Yds., bearing Pvt. No.6-A, Khasra Khata No.1781- 1783-1784-1785, No.344/360, situated at Abadi Guru Gobind Singh Nagar Sub urban, Majitha Road, Amritsar has not been partitioned by metes and bounds and with the consequential relief of permanent injunction restraining the defendant No.2 from making any addition, alteration or construction in the said property in any manner whatsoever may be".
4. Upon appraisal of the pleadings and the evidence led by the parties, the learned Civil Judge (Senior Division), Amritsar had dismissed the Civil Suit No. 94 dated 16.08.2003 of the plaintiff vide judgment and decree dated 13.06.2012. The Civil Appeal No. 14899 of 2012 filed by the plaintiff was dismissed by the learned Additional District Judge, Amritsar vide judgment and decree dated 30.11.2013. Hence, the DIVYANSHI present RSA-2593-2014 has been filed by the plaintiff.
2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -4-
5. It may be pointed out that during the pendency of the Civil Suit No. 94 dated 16.08.2003, plaintiff had also filed Civil Suit No. 568 dated 08.06.2011 (subject matter of RSA-3564-2019) before the learned Civil Judge (Junior Division), Amritsar titled as Sarwan Kumar vs. Chaman Lal and another, seeking following relief:-
"Suit for Permanent Injunction restraining the defendant No.1 himself or his associates, privies agents, representatives, attorneys etc. from dismantling any part of the property or from raising any kind of additions, alterations, construction, reconstruction by demolishing the property and also restraining from changing the nature of the building i.e. dwelling house measuring 206 square yards, bearing private No.6-A, Khasra No.1781-1783-1784-1785, Khata No.344/360, situated at abadi Guru Gobind Singh Nagar, Sub Urban, Majitha Road, Amritsar and also restraining the defendant No.2 from granting any permission to the defendant No.1 or any other person for such kind of dismantling or additions, alterations and construction over the said dwelling house and also restraining from changing the nature of the building in question without obtaining written consent from the plaintiff as there is vested interest of the plaintiff in the property in question".
6. Upon appraisal of the pleadings and the evidence led by the parties, the learned Civil Judge (Junior Division), Amritsar had dismissed the Civil Suit No. 568 dated 08.06.2011 vide judgment and decree dated 27.02.2017. The Civil Appeal No. 338 of 4.5.2017 filed by the plaintiff was dismissed by the learned Additional District Judge, Amritsar vide DIVYANSHI 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -5- vide judgment and decree dated 30.04.2019. Hence, the present RSA- 3564-2019 has been filed by the plaintiff.
7. It is inter alia submitted by learned counsel for the appellant that the learned Courts below were in error in non-suiting the appellant as they failed to appreciate that the Sale Deed executed by defendant No.1 in favour of defendant No.2 of specific portion of the suit property was not maintainable without there being any partition of the suit property. It is submitted that ample evidence has been brought on record by the appellant that the property had been jointly purchased by the brothers and construction thereupon, had been raised with joint funds. However, learned Courts below have ignored the evidence produced by the appellant. Learned Courts below have also failed to appreciate that since the partition of the property had not been proved therefore, defendant No.1 could not alienate specific portion to defendant No.2. Learned Courts below have not even gone into question as to whether sale of defendant No.1 in favour of defendant No.2 was more than his share. It is contended that at most, defendant No.2 can be held to be joint owner of the suit property in dispute to the extent and share of the ownership of defendant No.1. It is reiterated that defendant No.1 being co-sharer in the property in dispute, could not have alienated specific portion of the joint property without getting the same partitioned.
8. It is submitted by learned counsel for the appellant that the DIVYANSHI appellant led sufficient oral as well as documentary evidence to prove 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -6- the factum of jointness of the appellant with respondent No.1. It was proved and not disputed by the adversary. On the one hand, there was documentary and concrete evidence to prove that the property was joint and not partitioned while on the other hand, without any tangible evidence and on slippery evidence of oral partition, the suit has been dismissed without any discussion and reasoning of discarding the evidence of the appellant. Thus, the learned courts below have erred in not following the settled principles of law to the prejudice of the appellant and thus, the impugned judgments and decrees are liable to be set aside.
9. It is lastly submitted that the learned First Appellate Court has not properly dealt with the Civil Appeal filed by the appellant as required under Order 41 Rule 31 CPC. It is accordingly prayed that present Second Appeals be allowed; and impugned judgments and decrees be set aside.
10. Per contra, learned counsel for defendant/respondent No.2 in RSA-2593-2014 and defendant no.2/respondent No.1 in RSA-3564-2019 vehemently opposes submissions made on behalf of the appellant and submits that the appellant has not filed Civil Suit for partition for the reason that an oral partition had taken place between the brothers which has also been admitted to by the parties.
11. It is further submitted that in any event, appellant has no locus standi as the appellant is attesting witness to the Agreement to DIVYANSHI Sale dated 23.01.2003 executed by defendant No.1 in favour of 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -7- defendant No.2 in pursuance to which property was sold to the defendant No.2 vide the impugned Sale Deed dated 29.07.2003 Ex.D1. It is further submitted that one of the co-sharers of the suit property i.e. Gian Singh, brother of the plaintiff, who had appeared as PW8, is also attesting witness to the impugned Sale Deed. It is submitted that therefore, the appellant cannot lay challenge to the Sale Deed executed by his brother/defendant No.1 in favour of defendant No.2. In support, Ld. counsel relies upon judgment of this Court in Bhim Singh v. Harbans Singh (P&H): Law Finder Doc Id# 230486. He accordingly prays for dismissal of the present appeals.
12. No other argument is raised on behalf of learned counsel for the parties. I have heard ld. counsel and perused the case file in detail. I find no merit in the submissions advanced on behalf of the appellant.
13. It is the contention of learned counsel for the appellant that the impugned Sale Deed dated 29.07.2003 Ex.D1 has been executed without getting land partitioned. However, it is the admitted case of the appellant that the suit property is joint in nature. It is also admitted case of the plaintiff that defendant No.1 is owner to the extent of 1/3rd share in the suit property. Therefore, defendant No.1 being owner of the suit property, was competent to execute the impugned Sale Deed. Needless to say, defendant No.1 cannot sell more than his share in the suit land.
14. It has next been contended on behalf of the appellant that defendant No.1 has sold more than his share in the suit property.
DIVYANSHI However, even the said contention of the appellant is factually incorrect 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -8-
as there are unequivocal clear findings of fact returned by both the Courts below to the effect that the Sale Deed Ex.D1 has been executed qua portion measuring 69 sq.yds. approximately; and undisputedly, 1/3 share of the defendant no.1 in suit property measuring 206 yd.², comes to approximately 68.6 sq.yds. Clearly therefore, defendant No.1 has not sold in excess of his share. For this reason, as well, plaintiff has no cause of action.
15. Furthermore, plaintiff has no locus to file the present suit as a perusal of the Agreement to Sell dated 23.01.2003 Ex.D2 executed by defendant No.1 in favour of defendant No.2 shows that the same has been signed by the plaintiff, defendant No.1, and their third brother, namely, Gian Chand. Learned Courts below have also found that all the three brothers are "In possession of their respective portions and specific portion with boundaries was agreed to be sold by the defendant No.1 in favour of the defendant No.2 in the presence of the plaintiff himself." In fact, plaintiff in his cross-examination as PW3 has admitted that he has no share in the property sold by defendant No.1. This fact has also not been denied by ld. counsel for the plaintiff during the course of arguments. From this fact itself, it is clear that Agreement to Sell was executed in the presence of the plaintiff himself and rather, with his consent.
16. It may also be pointed out that another plaintiff witness namely PW4 Anil Kumar has admitted in his evidence that in the portion DIVYANSHI which was purchased by defendant No.2, there is a wall on the side of 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) -9- the property. Meaning thereby, that property stood partitioned between the parties. PW4 has further admitted that all the three brothers have been running their businesses separately for the past 20-25 years.
17. What to say, even the third brother of the plaintiff, namely PW8 Gian Chand, who is one of the co-sharers of the suit property, has inter alia admitted in his evidence that all three brothers had separate mess; separate water connection; and separate electricity connection; and running their separate businesses through three separate shops which are separated by partition of walls.
18. From the above facts, it would appear that the suit property already stood orally partitioned between the parties; and which oral partition had also been acted upon. Thus, plaintiff had no locus standi to file the present suit. This fact was further buttressed from the Site Plan Ex.D2/A produced by defendant No.2 from which it is proved that suit property stood partitioned. Admittedly, plaintiff has not produced any contrary Site Plan to controvert pleadings and evidence of defendant No.2. The Site Plan Ex.D2/A produced by defendant No.2 went totally unrebutted, unchallenged and uncontroverted. Thus, as the plaintiff has himself admitted in the Agreement Ex.D2 that defendant No.1 is an exclusive possession of his share, he is estopped by his own act and conduct from filing the present suit. Therefore, plaintiff also has no right to restrain defendant No.2 from raising construction when he is proved to be in exclusive possession of 1/3rd share vide Sale Deed Ex.D1.
DIVYANSHI 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) - 10 -
19. The suit is also bad for non-joinder of parties as third co- sharer, namely, Gian Chand was not made a party to the suit. In any event, plaintiff is estopped from challenging the same as the plaintiff has signed the said Agreement to Sell dated 23.01.2003 as attesting witness. No attempt was made by the appellant to get compared his signature on the Agreement with his standard signature. Thus, plaintiff had failed to prove that the Agreement to Sell dated 23.01.2003 is a forged and fabricated document and does not bear his signature as contended.
20. Moreover, this Court in Gurpreet Singh v. Paramjit Kaur, (Punjab And Haryana) : Law Finder Doc Id # 2520489 has held as under:-
"B. Co-sharers - Exclusive possession - Law laid down by Hon'ble Supreme Court - Co-sharer in exclusive possession of a portion of joint property can retain possession if it does not exceed their share, and such possession can be transferred to a vendee who holds the same rights as the co-sharer until partition of the property. "
21. This Court in Bhim Singh's case (supra) has held as under:-
"Civil Procedure Code, 1908 Section 100 Specific Relief Act, 1963 Section 41 Injunction suit - Permanent injunction - Co- sharer - Suit for permanent injunction restraining the defendant-respondent from raising any construction or challenging the nature of the suit property and further restraining respondent No.1 from alienating specific khasra numbers and more than share in the land in dispute was dismissed - Challenged - Appellants have themselves DIVYANSHI 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) - 11 -
admitted the factum of oral partition and cultivation of separate shares by them - They have also admitted having made construction over the property falling into their share - The Courts below on appreciation of evidence have recorded a finding of fact that partition of the Joint Khata pertaining to the suit land has already been effected and the plaintiff- appellants were in exclusive possession of their share which had fallen to them and defendant No.1 was in exclusive possession of his share out of the suit land - There is no material evidence on record on the basis of which the findings of the Courts below could be challenged - Appeal dismissed."
22. I also find no merit in the contention raised by learned counsel for the appellant that the learned First Appellate Court has failed to deal with the matter properly as, a perusal of the impugned judgment dated 30.11.2013 shows that the learned Additional District Judge, Amritsar has dealt with each aspect raised by the appellant in detail.
23. Relevant findings of the learned First Appellate Court as contained in judgment dated 30.11.2013 are as under: -
"25. On a careful perusal of the abovesaid evidence led by the parties, this fact stands established that there is no dispute between the parties to the effect that the suit property was earlier owned by one Shanti Devi, from whom the plaintiff, defendant No.1 and their brother Gian Chand purchased the same vide sale deed dated 16.1.1990. Admittedly, sale deed dated 29.7.2003 has been executed by defendant No.1 DIVYANSHI regarding his 1/3rd share out of the suit property in favour of 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) - 12 -
the defendant No.2, which has been challenged by the plaintiff on the ground that same has been executed without getting the joint property partitioned and further on the ground that the same is more than his share.
26. Admittedly, defendant No.1 who sold the property in question in favour of defendant No.2 was a co-sharer in the suit property. The grouse of the appellant-plaintiff is that same has been sold by the defendant No.1 without getting the suit land partitioned and as such the sale deed Ex.D1 executed by defendant No.1 in favour of defendant No.2 is illegal, null and void. But the sale deed Ex.D1 which is for a valid consideration cannot be considered to be illegal merely because of the reason that the property has not been partitioned amongst the co-sharers. At the most the defendant No.2 has become a co-sharer in the suit property. The next ground of attack of the appellant-plaintiff is that the defendant No.1 has executed the sale deed Ex.D1 more than his share. But a careful perusal of the sale deed Ex.D1 shows that the same has been executed qua the portion measuring 69 Sq. yards approximately. Admittedly, share of defendant No.1 comes to the extent of 68.3 Sq. yards, which is quite equallent to the share of defendant No.1.
27. The main contention of the learned counsel for the appellant-plaintiff is that the agreement to sell dated 23.1.2003 is a forged and fabricated document and it does not bear the signatures of the plaintiff and the signatures of the plaintiff have been forged by the defendant No.2 in connivance with his son. But a careful perusal of the agreement to sell Ex.D2 dated 23.1.2003 proved on the file by the defendant shows that it bears the signatures of Gian Chand, third brother of the plaintiff and defendant No.1 a co-
DIVYANSHI 2026.01.22 11:10 I attest to the accuracy and integrity of this document RSA Nos. 2593-2014 (O&M) and 3564-2019 (O&M) - 13 -
sharer to the extent of 1/3rd share in the suit property and the plaintiff has also signed the plaintiff as an attesting witness. Plea of the plaintiff is that his signatures have been forged. But no attempt has been made by the plaintiff to get his signatures compared with his standard signatures. On a careful perusal of the agreement to sell Ex.D2, it is crystal clear that all the three brothers namely Sarwan Kumar plaintiff, Parkash Chand defendant No.1 and Gian Chand were in possession of their respective portions and specific portion with boundaries was agreed to be sold by the defendant No.1 in favour of the defendant No.2 in the presence of the plaintiff. PW3 (plaintiff) in his cross examination admitted that he has no share in the property sold by Parkash Chand. Even PW4 Anil Kumar admitted in his cross examination that the portion which was purchased by Chaman Lal defendant No.2 is a separate portion and there is a wall on the side of the property which was purchased by defendant No.2 from the defendant No.1."
24. Learned counsel for the appellant is unable to controvert or dispute the above said facts, findings and legal position.
25. In view of the same, no ground to interfere in the concurrent judgments and decrees of the learned Courts below, is made out.
26. Both the appeals, accordingly, stand dismissed on merits.
27. Pending application(s) if any also stand(s) disposed of.
19.01.2026 (NIDHI GUPTA)
Divyanshi JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
DIVYANSHI
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I attest to the accuracy and
integrity of this document
RSA Nos. 2593-2014 (O&M) and
3564-2019 (O&M) - 14 -
DIVYANSHI
2026.01.22 11:10
I attest to the accuracy and
integrity of this document