Punjab-Haryana High Court
Lachhman Singh & Ors vs Nirmal Singh & Ors on 17 July, 2013
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No. 1485/2013(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.1485 of 2013(O&M)
Date of Decision:-17.07.2013
Lachhman Singh & Ors
......Appellants.
Versus
Nirmal Singh & Ors
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. S.S. Swaich, Advocate for the appellants.
***
JASWANT SINGH, J.(ORAL)
Defendant nos.1 to 3 and 6 are in second appeal against the judgment and decree of reversal dated 5.1.2013 passed by learned Additional District Judge, SAS Nagar Mohali whereby the appeal filed by the plaintiff against judgment and decree dated 3.11.2010 passed by the learned Civil Judge(Jr. Dinv.), Kharar was allowed and consequently the suit was decreed for separate possession by way of partition of the suit land.
In brief, facts of the case are that the plaintiff and predecessor in interest of respondent nos.4 to 10 filed a suit for separate possession by way of partition of the suit land as described in the plaint, on the ground that they are the co-owners to the extent of 5/16th share in the land in question.
Upon notice, defendant nos.1 to 4 filed a joint written statement whereby it was stated that originally the land was owned by one Maghi, who had four sons Ram Chand, Kanshi Ram, Babu Ram and Puran Chand Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh RSA No. 1485/2013(O&M) #2# and two daughters Shanti and Krishni. The plaintiffs are sons of Ram Chand(one of the sons of Maghi) and defendants are sons of Kanshi Ram and Babu Ram (other two sons of Maghi). It was further stated that after the death of Maghi and consequently of Ram Chand, the plaintiffs inherited the share of Ram Chand. Later on Puran Chand brother of Ram Chand died issueless and dispute regarding his inheritance arose, which was ultimately decided in/by a compromise dated 14.06.1981. It was stated that entries upon which the plaintiffs are basing their suit are wrong as the compromise which was effected among the parties has not been properly incorporated in the revenue record and taking benefit of these wrong entries the plaintiffs have wrongly filed the present suit.
Replication was filed wherein the entire contents of the plaint were reiterated and denied those of the written statement.
From the pleadings of the parties issues were framed. Both sides lead evidence and after appreciating their evidence, learned trial Court dismissed the suit of the plaintiff and the findings therefore were reversed by learned lower Appellate Court. Hence the present second appeal.
I have heard learned Counsel for the appellants and have also gone through the case file carefully with his able assistance.
Learned Counsel for the appellants has argued that the learned lower Appellate Court has wrongly decreed the suit of the plaintiffs by not appreciating the evidence on record in the right perspective, which has lead to grave illegality and thus the findings are liable to be set aside. It was further argued that the learned lower Appellate Court has wrongly held the suit to be for complete partition and not for partial partition, although it is proved on record that the suit itself is not maintainable being for partial Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh RSA No. 1485/2013(O&M) #3# partition.
After hearing learned counsel for the appellants and perusing the paper book, this Court is of the considered view that the present appeal is devoid of any merit and the same deserves to be dismissed. In the present case, it is admitted position that in their written statement, defendants have not raised a plea that the suit is bad for partial partition. It is also admitted position that execution of the compromise dated 14.06.1981 (Ex.D-2) is not in dispute. It is evident from record that Sarwan Singh, one of the plaintiffs appeared and tendered his affidavit in his examination in chief. In the said affidavit he admitted the compromise deed dated 14.06.1981. Unfortunately, Sarwan Singh died and, therefore, did not appear for cross examination. Further, the plaintiffs/respondents also took the plea that Puran Chand son of Maghi Ram had left one house in Abadi and the said house had been given by Babu Ram son of Maghi Ram in oral exchange to one Amar Nath, who gave it to Babu Singh son of Jeun Singh. Thus it is made out that the plaintiffs produced the evidence to make out the case that in fact the house left by Puran Chand in the Abadi was given to Babu Ram in family settlement as mentioned in writing Ex.D-2. Thus, it is apparent that the plaintiffs did not claim any right or interest in the house left by Puran Chand in the Abadi of the village. Even as per the case of the plaintiffs/respondents, Babu Ram had given the said house to one Amar Nath in oral exchange and Amar Nath further gave it to Babu Singh. Title of Babu Singh has not been challenged by plaintiffs till date.
In view of the above, learned trial Court had wrongly concluded the said house to be a joint property and thus on account of exclusion of said house, dismissed the suit as being not maintainable being Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh RSA No. 1485/2013(O&M) #4# filed for partial partition. Therefore, the learned lower Appellate Court was right in holding that the suit was not maintainable as same was not for partial partition.
As far as the share of the plaintiffs in the land in dispute is concerned, I am in complete agreement with the findings returned by learned lower Appellate Court, as mentioned in para 20 of the judgment whereby it has been held as under:-
" Now it has to be seen as to what is the share of the plaintiffs in the land in dispute. The defendants have alleged that as per the family settlement effected vide writing dated 14.06.1981 Ex.D-2, the share of Puran in the Abadi property inherited by Shanti and Kreshni ahd been given to Babu Ram. But it is made out that after the said family settlement, Babu Ram, plaintiffs and defendant no.1 and 2 jointly filed a suit on 15.06.1981. In the said suit, a consent decree was passed on 28.7.1981. Copies of the said judgment and decree dare Ex.D- 4 and Ex.D4/A. The suit land is also mentioned in the said decree and judgment suffered on the basis of the compromise. Shanti and Kreshni had given their share received by them by way of inheritance of Puran, even in the suit land in equal share to their brothers of their legal heirs. As already mentioned above, the plaintiffs got 1/24 share in the suit land by way of decree and judgment dated 28.7.1991. The defendants have alleged that the land in dispute was inadvertently incorporated in the proceedings which resulted into the decree and judgment Ex.D-4 and Ex.D4/A. They have Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh RSA No. 1485/2013(O&M) #5# produced copy of the compromise deed dated 14.6.1981 Ex.D2. In the said compromise deed, it is mentioned that the Abadi land of Puran and his house has been given to Babu Ram son of Maghi Ram. As already mentioned above, one house left behind by Puran has been given in exchange by Babu Ram to Amar Nath and he further gave it to Babu Singh PW-2. Therefore, it is made out that Puran had left behind Abadi property in the village and the said property has been exclusively transferred by Babu Ram in favour of Puran Chand. Therefore, the said recital made in the compromise deed Ex.D-2 pertained to the said property. Had it been relating to the property in question, the suit property would not have been incorporated in the Civil suit filed by Babu Ram and others which resulted into the decree and judgment dated 28.7.1981. Even the mutation on he basis of the said decree and judgment was sanctioned in the year 1981. Since then no body has challenged the decree and judgment. No doubt one of the plaintiff Sarwan Singh appeared as DW-2 and made the statement to the effect that in fact the share of Shanti and Kreshni in the suit land was given to Babu Ram and the suit land was wrongly incorporated in the decree and judgment dated 28.7.1981. However, plaintiff Sarwan Singh did not appear for cross examination. In case he has made admission, the same cannot effect the right, title or interest of other plaintiff i.e. appellant Nirmal Singh. Even Lachman Singh defendant made statement as DW-1 and examined DW-3 Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh RSA No. 1485/2013(O&M) #6# Gurmail Singh and DW-4 Mehma Singh to prove the writing dated 14.6.1981. The genuineness of the said writing has not been disputed even at the time of the arguments by the learned Counsel for the appellant. But the said writing does not prove that the share of Shanti and Kreshni in the suit land had been given to Babu Ram. Even in the compromise deed dated 14.6.1981, it has been mentioned that in fact the house of Puran has been given to Babu Ram. Even in the compromise deed dated 14.6.1981, it has been mentioned that in fact the house of Puran has been given to Babu Ram. Therefore, it is not made out that the share of Shanti and Kreshni in the property in dispute was given to Babu Ram. As already mentioned above, the said recital relates to the other property left behind by Puran in the Abadi of the village and the said property left behind by Puran in the Abadi of the village and the said property has already been orally exchanged by Babu Ram to Amar Nath who further gave it to Babu Singh PW-2. Therefore, it is made out that both the plaintiffs are co-owners to the extent of 7/24 share in the land in dispute and the share of present appellant comes to 7/48 share."
In view of the above, there is no merit in the present second appeal and same is hereby dismissed.
Before parting with the judgment, it would be appropriate to consider CM No.3977-C of 2013 which is an application under Order 41 Rule 27 CPC for producing additional evidence i.e. certified copies of jamabandies for the years 2000-2001, 2005-2006 and 2010-2011 attached as Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh RSA No. 1485/2013(O&M) #7# Annexures A-1 to A-3 respectively, to show that the suit of the respondent/plaintiff is bad for partial partition. It is argued that from the jamabandis it is clear that the parties are co-sharers with joint possession in other khasra nos.6//3/2/1 (0-4), 6//22/10 (0-6). From the bare reading it is apparent that in the said killa no.3/2/1 measuring 0-4 marlas is shown as gair mumkin rasta and kila no.22/10 measuring 6 marlas is shown as gair mumkin roori, which are used for common purposes by the co-sharers which cannot be partitioned. It otherwise cannot be disputed that this information as per jamabandi was always available to the appellants/defendants and they have shown no reason as to why the same could not be brought on record at the earlier stage. Therefore, no case for leading additional evidence is made out.
In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE July 17, 2013 Vinay Mahajan Vinay 2013.08.03 14:18 I attest to the accuracy and integrity of this document at Chandigarh