Punjab-Haryana High Court
Om Parkash vs Budhi Ram on 21 March, 2013
Author: Rajan Gupta
Bench: Rajan Gupta
RSA No.2394 of 1985 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.2394 of 1985 (O&M)
Date of decision: March 21, 2013
Om Parkash ...Appellant
Versus
Budhi Ram ...Respondent
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. C.B. Goel, Advocate for the appellant.
Mr. Amit Jain, Advocate for the respondent.
Rajan Gupta, J.
Appellant/plaintiff filed a suit seeking permanent injunction to restrain the defendant from interfering in his possession over the land as described in the plaint. Plaintiff claimed that his father alongwith father of defendant were joint owners in possession of agricultural land measuring 08 Kanals 11 Marlas situated in the revenue estate of Ferozepur Jhirka, District Gurgaon. They were also mortgagees in possession of another 04 Kanals 16 Marlas. In 1965 a mutual partition took place regarding the land in which Rect. No.165, Killa No.23(2-17) and Rect. No172, Killa No.12 and 9/2 and mortgaged land fell to the share of Shanker Lal, father of the plaintiff. Rest of the land went to defendant's father Partap Singh. He also claimed that this partition was adhered to by the parties. Even the mortgaged land was redeemed in which plaintiff's father became co-owner to the extent of half share. The partition proceedings could not be reflected in the revenue record RSA No.2394 of 1985 2 inadvertently. Thus, defendant threatened to interfere in peaceful possession of plaintiff. Plea of the plaintiff was controverted by the defendant. He stated that parties were co-sharers in the suit land. The agreement stated to be executed in 1965 was a forged document. Revenue entries clearly show that property is joint in nature. Defendant also pleaded that plaintiff had executed two sale deeds, wherein he claimed that he was joint owner of the property. In support of his case plaintiff examined one Daya Ram Goel to prove document Ex.P1. This witness, however, stated that he had no personal knowledge about the document. Another witness PW2 examined by plaintiff deposed that he had purchased 05 Marlas of land from plaintiff, copy whereof was Ex.PW2/1. Plaintiff himself appeared as PW5 and claimed that agreement Ex.P1 was entered into between his father and father of defendant. Other two witnesses were examined to prove execution of document Ex.P1. Defendant produced a Registration Clerk to prove sale deeds Ex.DW1/1 and Ex.DW1/2 to show that defendant had sold land claiming to be owner of half share thereof. Defendant himself stepped into the witness-box and stated that there was no agreement Ex.P1 between their fathers. Trial court after examining the evidence came to the conclusion that plaintiff failed to prove agreement Ex.P1. It observed that revenue record clearly showed that land in dispute was joint property of the parties and same was never partitioned. It, thus, dismissed the suit. Plaintiff unsuccessfully challenged the findings before the Additional District Judge, Gurgaon. Before this court, learned counsel for the appellant has contended that agreement dated 28.7.1965 Ex.P1 had been RSA No.2394 of 1985 3 duly proved before the court below. A partition was effected between the parties in terms of said agreement. Merely because partition was not reflected in revenue record, plaintiff's suit could not have been dismissed. Counsel for respondent, however, submits that there was no proof of execution of agreement Ex.P1. The private partition as claimed by plaintiff was never arrived at or acted upon. Revenue record clearly shows that parties are co-sharers in same having joint possession. Admittedly, plaintiff never filed any application before the revenue authorities for implementation of alleged agreement Ex.P1. On consideration of judgments of both courts below, I am of the considered view that no interference in second appeal is called for. The evidence has been correctly appreciated by the courts below. The alleged partition is not recorded in the revenue record. On the other hand, revenue record clearly shows that parties are recorded as joint owners in possession of the land. Defendant clearly stated before the court that agreement Ex.P1 was never signed by his father Shankar Lal. Courts below, thus, came to the concurrent view that plaintiff had no case on the basis of agreement Ex.P1. The appeal is, thus, without any merit. No substantial question of law arises warranting interference in second appeal.
Dismissed.
(RAJAN GUPTA) JUDGE March 21, 2013 'rajpal'