Punjab-Haryana High Court
Ajit Raj & Another vs Poonam & Others on 18 January, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
RSA No.3489 of 2010 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
REGULAR SECOND APPEAL NO.3489 OF 2010 (O&M)
DATE OF DECISION: JANUARY 18, 2012
Ajit Raj & another
.... Appellants
Versus
Poonam & others
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
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PRESENT: Mr. R. K. Arya, Advocate for the appellants.
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L.N. MITTAL, J. (ORAL)
CM No.12609-C of 2011 The application is allowed and Annexed order dated 05.02.2001 is taken on record, subject to all just exceptions.
CM No.10162-C of 2010 For reasons mentioned in the application, which is accompanied by affidavit, delay of 55 days in filing the appeal is condoned. CM No.10163-C of 2010 Learned counsel for the appellants states that requisite Court fee has since been paid. The application is, therefore, allowed. CM No.10164-C of 2010 Allowed as prayed for.
Main Case Defendants No.12 and 13 having lost in both the courts below have filed the instant second appeal.
RSA No.3489 of 2010 (O&M)-2-
Girdhari Lal-plaintiff filed suit against appellants and respondents No.6 to 17 for separate possession of 2 marlas plot along with superstructure by way of partition. Girdhari Lal has since died and is represented by respondents No.1 to 5 as his legal representatives. The plaintiff alleged that he was cosharer to the extent of 2 marlas i.e. 2/42 share in land measuring 2 kanals 2 marlas described in the plaint. The plaintiff was in exclusive possession of two marlas portion out of said joint land and had constructed a shop and verenda besides open space therein. Defendants No.1 to 6 (respondents 6 to 12) were the original cosharers who have alienated land out of the joint land to the remaining defendants. The plaintiff was being threatened with forcible dispossession of the suit property which was in his exclusive possession. Accordingly the plaintiff sought separate possession of his share by partition of the joint land.
Defendants No.10 to 13 contested the suit, whereas remaining defendants were proceeded ex parte. Defendants No.10 and 11 alleged that Tehsildar-cum-Collector had already decided the partition proceedings. It was also alleged that entire joint khata has not been included in the suit. It was also pleaded that plaintiff has no share in the suit land nor he was in exclusive possession of the suit portion. It was denied that plaintiff had raised any construction therein or was running any shop. Later on defendants No.10 and 11 were also proceeded ex parte.
Defendants 12 and 13 (appellants herein) also contested the suit and denied the plaintiff's version. It was denied that plaintiff is cosharer in the suit land or is in exclusive possession of the suit portion. It has already been held in previous litigation that plaintiff is not in possession of the suit portion. Various other pleas were also raised.
RSA No.3489 of 2010 (O&M)-3-
Learned Additional Civil Judge (Senior Division), Gurdaspur vide judgment and preliminary decree dated 06.09.2006 decreed the suit and passed preliminary decree for separate possession of the plaintiff's share of 2 marla out of the suit land. First appeal preferred by defendants No.12 and 13 has been dismissed by Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur vide judgment and decree dated 04.08.2009. Feeling aggrieved, defendants No.12 and 13 have filed the instant second appeal.
I have heard learned counsel for the appellants and perused the case file.
The plaintiff has successfully proved by way of documentary evidence that he had share of 2 marlas in 2 kanals 2 marlas land in question. He produced copy of jamabandi Exhibit P-3 along with copy of sale deed Exhibit P- 1 and site plan Exhibit P-2, besides oral evidence. Vide sale deed Exhibit P-1, the plaintiff purchased 2 marlas share out of 2 kanals 2 marlas land and has, therefore, been rightly held to be cosharer therein to that extent.
Learned counsel for the appellants contended that previously plaintiff Girdhari Lal along with son Ashwani Kumar had filed suit for permanent injunction on similar allegations and in that suit, Girdhari Lal and Ashwani Kumar were held to be not in possession of the suit portion by the first appellate Court which was affirmed by this Court in RSA No. 1619 of 2000 which was dismissed vide order dated 05.02.2001. However, this contention has no effect on the merits of the present case. The previous suit was suit for injunction only on the basis of possession. Plaintiffs of that suit wanted to protect their possession. However, it was not proved that they were in possession of the suit portion. Dismissal of the said injunction suit does not bar RSA No.3489 of 2010 (O&M) -4- the instant partition suit because the plaintiff continued to be cosharer in the joint land. It was not held in the previous litigation that plaintiff was not cosharer in the joint land. The only finding against him in the previous litigation was that he was not proved to be in possession of the suit portion out of the joint land. However, a cosharer always has a right to seek partition of the joint land. There is even recurring cause of action to seek relief of partition of joint land. Consequently, the instant suit for partition of joint land is not barred merely because previous suit for injunction was dismissed.
There is concurrent finding by both the courts below that plaintiff is proved to be cosharer in the joint land in question. The said finding is based on proper appreciation of evidence and supported by reasons. In fact, the documentary evidence proves that plaintiff is cosharer in the joint land to the extent of 2 marlas. Accordingly his suit for partition has been rightly decreed by passing preliminary decree for partition.
Concurrent finding recorded by the courts below is not shown to be perverse or illegal nor it is based on misappreciation or misreading of evidence so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. On the other hand, concurrent finding recorded by the courts below is the only reasonable finding that can be arrived at on the basis of evidence lead by the parties. There is no infirmity in the said finding. The appeal is thus found to be meritless and is therefore, dismissed in limine.
(L. N. MITTAL) JUDGE 18.01.2012 'raj'