Punjab-Haryana High Court
Baldev Singh vs Ajit Singh & Others on 10 May, 2011
Author: Sabina
Bench: Sabina
RSA No. 911 of 1999 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No. 911 of 1999 (O&M)
Date of Decision: 10.5.2011.
Baldev Singh .......Appellant
Vs.
Ajit Singh & others ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Arun Jain, Senior Advocate with
Mr. Vishal Goyal, Advocate
for the appellant.
Mr. K.S. Dhillon, Advocate and
Mr. B.S.Mann, Advocate
for the respondents.
.....
SABINA, J.
Plaintiffs had filed a suit for partition.
The case of the plaintiffs in brief was that Bhagat Singh was owner of the suit property. Bhagat Singh executed sale deeds in favour of plaintiffs No. 2, 3 and 4 and defendants No. 1 and 2 qua 105/171 share out of khasra No. 60//22/2 (8-11). The remaining land remained with Bhagat Singh. Bhagat Singh died on 1.6.1986. The share of Bhagat Singh in Khasra No. 60//22/2 and the property, mentioned in Para 'b' of the head note of the plaint, was still joint between the parties. Plaintiffs No. 2 to 4 and Balbir Singh defendant had constructed their houses over the land purchased by them from Bhagat RSA No. 911 of 1999 (O&M) -2- Singh. Baldev Singh-defendant had not raised any construction qua the land, mentioned in para 'a' of the head note of the plaint, purchased by him. Baldev Singh defendant had moved an application for partition of the suit land before the court of Assistant Collector Ist Grade, Kapurthala. However, the said application was later on withdrawn by the defendant Baldev Singh on 2.5.1983. The plaintiff No.1 Ajit Singh had constructed his residential house in the property mentioned in para 'b' of the head note of the plaint. Defendant Dalip Singh had also constructed his house in the suit property. Plaintiffs Ajit Singh, Balbir Singh, Mohinder Singh and Sarup Singh had constructed shops in the suit property. The constructed portion was in possession of the respective parties, whereas the remaining property as mentioned in para 'b' of head note of the plaint was lying vacant.
Defendants No. 1, 2, 8, 9 and 11, in their written statement, averred that father of the plaintiffs, during his lifetime, had sold 7 Kanals 17 Marlas of land out of Khasra No. 60//22. 5 Marlas of land had been used for laying streets and other remaining land was lying vacant. Out of 1 Kanal 1 Marla land was lying vacant. Plaintiffs No. 2, 3 and 4 had constructed their houses over the land purchased by them from their father. Defendant No.1 had constructed 6 shops and residential house in the area, purchased by him from his father, out of khasra No. 60//22.
Defendants No. 3, 4 and 5, in their statement, averred that the civil court had no jurisdiction to try the suit. The defendants No. 4 and 5 were owners in possession in equal RSA No. 911 of 1999 (O&M) -3- shares of 3½ Marlas of land out of Khasra No. 60//22/2 in view of the sale deeds dated 5.9.1985 and 6.9.1985. The said defendants had constructed a house and shop in the suit property. Defendant No.3 was owner in possession of 3½ Marlas of land out of Khasra No. 60//22/2 and had construction two shops and a residential house in the said property.
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether the plaintiffs are co-sharers in the land in dispute? OPP
2. Whether the plaintiffs are entitled to get partition of the land in dispute? OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD
5. Whether this court has no jurisdiction to entertain the present suit? OPD
6. What is the effect of application of partitio in which is pending in the court of A.C. Ist Grade, Kapurthala? OPD
7. Whether the suit is bad for mis-joinder of parties? OPD
8. Relief."
Additional Senior Sub Judge vide judgment and decree dated 20.12.1993, decreed the suit of the plaintiffs RSA No. 911 of 1999 (O&M) -4- and held as under:-
"In view of my findings on the above issues a preliminary decree for partition of the suit property is passed in favour of the plaintiffs and against the defendants with costs. Ajit Singh would have only 1/6th share out of khasra No. 60/22/2(8-11) which was left in the name of Bhagat Singh at the time of his death. But all the six sons would have 1/6th share each of the property as mentioned in para (b) of the heading of the plaint. Let the preliminary decree sheet be prepared. File be consigned."
Defendant No.1 preferred an appeal and the plaintiffs preferred the cross objections. Vide judgment and decree dated 1.12.1998, the Additional District Judge dismissed the appeal filed by the defendant No.1 and allowed the cross objections, filed by the plaintiffs and held that the plaintiffs and defendants No. 1 and 2 were entitled to 1/6th share each out of khasra No. 60//22/2(8-11) which was left in the name of Bhagat Singh at the time of his death and all of the six sons would get 1/6th share each out of the property mentioned in para 'b' of the heading of the plaint. Hence, the present appeal by the defendant No.1.
During the course of arguments, learned senior counsel for the appellant has submitted that Bhagat Singh had only 1 Kanal 1 Marla of land left with him after executing the sale deeds in favour of the plaintiffs No. 2 to 4 and defendants No. 1 and 2. Hence, the area which had been purchased by the said plaintiffs and defendants could not be partitioned as the RSA No. 911 of 1999 (O&M) -5- land, purchased by the plaintiffs No. 2 to 4 and defendants No. 1 and 2, was already in their exclusive possession in terms of the sale deeds executed by Bhagat Singh in their favour. The learned senior counsel has further submitted that the appellant was not aggrieved by the partition of land mentioned in para 'b' of the head note of the plaint.
Learned counsel for the respondents, on the other hand, has submitted that the apprehension of the learned senior counsel for the appellant was misfounded as the courts below had ordered the partition of the land which was left with Bhagat Singh out of Khasra No. 60//22/2.
After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal.
A perusal of jamabandi (Ex. D-2) for the year 1990- 1991 reveals that out of khasra No. 60//22/3/2 (which admittedly forms property mentioned in para 'a' of the head note of the plaint) reveals that Sarup Singh, Balbir Singh, Mohinder Singh and Dalip Singh were in exclusive possession of 1 Kanals 1 Marla of land each out of the total land. Defendant Baldev Singh is in possession of 1 Kanal 3 Marlas of land exclusively. Only 1 Kanal 1 Marla of land was joint between the sons of Bhagat Singh. The courts below have clearly held that only the share out of khasra No. 60//22/2, which remained with Bhagat Singh at the time of his death, was liable to be partitioned equally between the plaintiffs and defendants No. 1 and 2. Thus, the land which had been purchased by the plaintiffs No. 2 to 4 and defendants No. 1 and 2 out of Khasra No. 60//22/2 will not be liable to be partitioned. Hence, the apprehension of the learned RSA No. 911 of 1999 (O&M) -6- senior counsel for the appellant that the area purchased by the appellant would also be put in the pool for partition, is misfounded. Hence, no ground for interference is made out.
No substantial question of law arises in this appeal. Dismissed.
(SABINA) JUDGE May 10, 2011 Gurpreet