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2000 DIGILAW 1155 (PNJ)

Chandgi Ram v. Kartar Singh

2000-09-22

K.C.GUPTA

body2000
JUDGMENT K.C. Gupta, J - This appeal is directed by the plaintiff, Chandgi Ram, against the judgment and decree dated 11.9.1980 passed by the Additional District Judge, Rohtak, whereby a suit for partition of one house and one plot situated at Bahadurgarh, District Rohtak (now District Jhajjar) was dismissed and the parties were left to bear their own costs. 2. Briefly stated, the facts are that the parties are decendants of common ancestor, Jamna Dass and they had joint property i.e. one house as shown in the site plan Ex. P3 and one plot as shown in site plan Ex.P4. The appellant, Chandgi Ram, is alleged to have 1/3rd share in the abovesaid property and was in possession of the portion of the property. Further averred that respondent Nos. 1 to 4 had got 1/3rd share while respondent No. 5, Sukhi Ram, had got the remaining 1/3rd share. Since, the respondents had refused to give possession of 1/3rd share belonging to the appellant after partition, so he filed this suit for possession of 1/3rd share on 20.5.1971. Respondent No. 5, Sukhi Ram, filed written statement supporting the claim of the appellant. However, respondent Nos. 1 to 4 contested the suit. They denied the allegations of the appellant (plaintiff) and stated that the appellant and respondent No. 5 had got no concern with the property in dispute and on the other hand, they were exclusive owners in possession of the same. They also denied that the property in dispute was their joint property. 3. On the pleadings of the parties, the following issues were struck of on 16.12.1970 :- "1. Whether the plaintiff is an owner of 1/3 share in the property in dispute ? OPP 2. Whether the plaintiff is in joint possession of the property in dispute. If not, whether the suit in the present form lies ? OPP 3. If issue No. 2 is not proved, whether the suit is properly valued for purposes of Court fee and jurisdiction ? OPD 4. Whether the suit is barred by time ? OPP 5. Whether defendant No. 1 is entitled to special costs under section 35A CPC ? OPD 6. Relief." 4. OPP 3. If issue No. 2 is not proved, whether the suit is properly valued for purposes of Court fee and jurisdiction ? OPD 4. Whether the suit is barred by time ? OPP 5. Whether defendant No. 1 is entitled to special costs under section 35A CPC ? OPD 6. Relief." 4. After hearing counsel for the parties and going through the evidence on the file, the Sub Judge 1st Class, Rohtak, vide his judgement dated 17.1.1973, dismissed the suit of the appellant for possession by partition of 1/3rd share by holding under Issue No. 1 that the appellant had failed to prove that the property in dispute was their joint property and as such was not entitled to partition. However, under Issue No. 2, it was held that the appellant was in possession of a portion of the house which he wanted to get and as such decided the issue in favour of the appellant. Issue No. 3 was held as redundant while Issue No. 4 was not pressed during arguments. Under Issue No. 5, it was held that no case was made out for special costs. Aggrieved by the said judgment and decree, the plaintiff filed the appeal, which was also dismissed by the Additional District Judge, Rohtak, vide his judgment dated 11.9.1980. 5. Aggrieved by the said judgment and decree, the plaintiff has filed the Regular Second Appeal. 6. I have heard counsel for the appellant, Sh. Pardeep Kapur, counsel for the contesting respondents, Sh. U.D. Gaur and carefully gone through the file. 7. Issue Nos. 1 and 2 are discussed together being inter-connected. The pedigree table of the parties is as under :- The above mentioned pedigreetable shows that the parties are related to each other through the common ancestor, Jamna Dass. Their relationship is also proved from the pedigreetables Ex. P6 and P7. Otherwise, also the respondents have not denied their relationship. However, from the mere fact that the parties are related to common ancestor, Jamna Dass, does not prove that they are owners in possession of the joint property as shown in site plans Ex. P3 and P4. In order to show the joint ownership of the property in dispute, it must be proved that the property in dispute was once owned by their common ancestor, Jamna Dass and it decended upon them through inheritance. P3 and P4. In order to show the joint ownership of the property in dispute, it must be proved that the property in dispute was once owned by their common ancestor, Jamna Dass and it decended upon them through inheritance. However, no evidence has been led to prove this fact. It has also not been proved that there was a joint nucleus out of which property in dispute had been purchased. The evidence produced by the appellant about the joint ownership of the property in dispute is not at all trust-worthy. PW1 stated that he knew the parties and their houses were joint. However, in cross-examination, he stated that the property in dispute consisted of 3-4 houses and two plots. This is obviously wrong. He further stated that he resided in a different Panna. This shows that he had no knowledge of the property in dispute. PW-2, Sirya, stated that he had seen the houses which were separate as well as joint. He next stated that he lived in a different Mohalla and he did not know as to which property was to be divided by the parties. Again his evidence is not helpful to determine that the property in dispute is joint between parties. PW3, Ranbir Singh, Secretary, Municipal Committee, Bahadurgarh, had produced the copies of the site plans, Ex. P1 and P2. However, in cross-examination, he stated that he has not seen the disputed property and could not say whether the site plans, Ex. P1 and P2 were correct or not. PW4, Lachhman Singh was a retired Overseer and he has prepared the site plans Ex. P3 and P4 at the instance of the appellant by sitting at Rohtak and he did not visit the spot. PW5, Chandgi Ram, stated that the property in dispute belonged to the parties in which he had got 1/3rd share while another 1/3rd share belonged to Sukhi Ram and the other 1/3rd share belonged to respondent Nos. 1 to 4. In cross- examination, he stated that Har Lal was their common ancestor. This is obviously wrong. Har Lal was not their common ancestor and, on the other hand, Jamna Dass was their common ancestor. He could not tell whether the property in dispute was owned by the common ancestor or not. 1 to 4. In cross- examination, he stated that Har Lal was their common ancestor. This is obviously wrong. Har Lal was not their common ancestor and, on the other hand, Jamna Dass was their common ancestor. He could not tell whether the property in dispute was owned by the common ancestor or not. He first stated that he only resided in the disputed house situated at Bahadurgarh but again stated that he also lived near the Police Station alongwith children. He next admitted that the agricultural land had already been partitioned between the parties. Thus, his mere statement that the property in dispute was their joint property is of no use in the absence of any other documentary evidence. DW1 Rattan Singh, on the other hand, stated that he has seen the disputed house and plot and the same belonged to Dani and after his death those belonged to Kartar and Bhim Singh and they resided there. He further stated that the appellant had got no concern with the aforesaid property. To the same effect is the statement of DW2, Sukhbir. DW5, Bhim Singh, one of the respondents stated that the plot in dispute and house belonged to his father Dani Ram and after his death respondent Nos. 1 to 4 had become the owners of the same. He next stated that Chandgi Ram, appellant and respondent No. 5, Sukhi Ram, had no concern with it. He further stated that Chandgi Ram and Sukhi Ram were not in possession of the same. He next stated that Chandgi Ram had a house near the Police Station situated at Bahadurgarh where he resided and which was at a distance of 6 furlongs from the house and plot in dispute. The site plan, Ex. P1 produced by Ranbir Singh, Secretary, has got no relevancy to the property in dispute. Ex. P2 is the site plan produced by Bhim Singh, respondent, to the Municipal Committee for permission to build the house. Towards north of the said house, the house of Chandgi Ram s/o Jai Ram i.e., appellant (plaintiff) has been shown. He may be having the house towards north of the house of Bhim Singh but it does not show that the property in dispute was their joint property. Otherwise also, since the agriculture land had already been partitioned, so the presumption is that the other immovable property had also been partitioned. He may be having the house towards north of the house of Bhim Singh but it does not show that the property in dispute was their joint property. Otherwise also, since the agriculture land had already been partitioned, so the presumption is that the other immovable property had also been partitioned. It is difficult to imagine that when the agriculture land was partitioned, then the other immovable property was not partitioned. It was admitted by Chandgi Ram that they had been living separately in their different portions. It is again suggested that the property in dispute is not their joint property and the appellant had not got 1/3rd share in it. This, it is held that the appellant is not in joint possession of the property in dispute and he is not the owner of 1/3rd share in it and the suit is not maintainable in the present form. In view of the discussion above, the appeal fails and the same is dismissed with costs. Appeal dismissed.