Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 109 (PNJ)

Sunder Lal v. Raj Kumari

2011-01-12

SABINA

body2011
JUDGMENT Mrs. Sabina, J.: - Plaintiff filed a suit for declaration challenging order dated 6.12.1993 passed by the Assistant Collector IInd Grade Bilaspur qua partition and mutation sanctioned on the basis of the said order on 28.3.1994 and subsequent entries in revenue record in pursuance of the impugned order and mutation. The case of the plaintiff was that the plaintiff and defendants were joint owners in possession of the suit land. An application for partition was moved by Manohri in the year 1992. On the basis of the said application, notice was issued to the parties and, thereafter, the Assistant Collector IInd Grade Bilaspur passed the impugned order dated 06.12.1993. The said order and subsequent revenue entries in pursuance thereto were not binding on the plaintiff as no notice was served on the plaintiff qua the partition proceedings. The defendants in collusion with each other has forged the signatures of the plaintiff on the power of attorney and written statement. The plaintiff had never engaged any counsel in the partition proceedings. No passage had been left for the plaintiff to reach the land allotted to him during the partition proceedings. 2. Defendants No. 2 and 3 in their written statements stated that the impugned order had been rightly passed during partition proceedings. None of the parties had filed any objection or appeal against the said order and the same had become final. Plaintiff had engaged a counsel who had appeared on behalf of the plaintiff in the partition proceedings. Plaintiff was present at the spot inspection and was aware of the partition proceedings. 3. Defendants No. 4 and 5 were proceeded ex-parte as they had failed to appear despite service. 4. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the defendants are joint owners in possession of the suit land?OPP 2. Whether the order dated 6.12.1993, passed by AC IInd Grade for partition and mutation No. 675 dt. 28.3.1994 and subsequent entries in the record of rights showing the separate shares of the plaintiff and defendants with regard to the suit property is null and void, inoperative, ineffective and not binding upon the plaintiff?OPP 3. Whether the plaintiff is entitled for injunction, as prayed for ?OPP 4. Whether the Civil Court has no jurisdiction?OPD 5. Whether the suit is time barred?OPD 6. Whether the plaintiff is entitled for injunction, as prayed for ?OPP 4. Whether the Civil Court has no jurisdiction?OPD 5. Whether the suit is time barred?OPD 6. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties?OPD 7. Whether the plaintiff has no locus standi?OPD 8. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 9. Whether the plaintiff has got no cause of action?OPD 10. Whether the plaintiff has concealed the true and material facts from the Court? If so its effect? 11. Whether the defendants are entitled for special costs?OPD 12. Relief.” 5. The suit of the plaintiff was dismissed by the trial Court vide judgment and decree dated 3.8.2006. In appeal filed by the plaintiff, the Additional District Judge Yamuna Nagar at Jagadhri upheld the judgment and decree passed by the trial Court vide judgment and decree dated 10.3.2010. Hence, the present appeal by the plaintiff. 6. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. 7. The case of the plaintiff was that he had not been served any notice qua the partition proceedings and he had not engaged any counsel to represent him in the partition proceedings. In support of his plea, plaintiff examined PW4 Ram Dhan Babar, an expert who compared the disputed signatures of the plaintiff appearing in partition proceedings with the standard signatures of the plaintiff and opined that the questioned signatures and the standard signatures were of different persons. However, the said report was rightly rejected by the Courts below as the expert had examined the questioned signatures with the signatures of the plaintiff from the plaint and power of attorney available on record of the trial Court. The questioned signatures of the plaintiff were liable to be got examined with his standard signatures. The signatures of the plaintiff on the plaint and the power of attorney could not be treated to be as his standard signatures. Plaintiff could have got his signatures taken before the trial court and then got them examined with the questioned signatures in the partition proceedings. 8. A perusal of para 10 of the judgment of the learned Additional District Judge reveals that in the cross-examination plaintiff has admitted that he has been visiting village Bilaspur where the land in dispute was situated. 8. A perusal of para 10 of the judgment of the learned Additional District Judge reveals that in the cross-examination plaintiff has admitted that he has been visiting village Bilaspur where the land in dispute was situated. In these circumstances, it cannot be believed that the plaintiff had no knowledge qua pendency of the partition proceedings. The impugned order was passed on 6.12.1993 and mutation No. 2629 was sanctioned on 28.3.1994. The factum of partition of the land was duly incorporated in the jamabandi for the year 1997-98. Admittedly, the share of the plaintiff in the suit land is 6 kanal 17 marla which is duly reflected in mutation No. 2629 and jamabandi for the year 1997-98.Learned Courts below after going through the evidence on record have given a finding of fact that the plaintiff had duly contested the partition proceedings and had, thereafter, filed the suit alleging that no passage has been provided to him at the time of passing of the final order. However, plaintiff did not challenge the order passed in the year 1993. Sanand Taqseem was also ordered to be issued as no objection was raised by any party to the order Exhibit P3. Plaintiff filed a suit in the year 2001 which was clearly time barred. Thus, both the Courts below had rightly dismissed the suit filed by the plaintiff. No substantial question of law arises in this appeal. Dismissed. -----------0.K.B.0------------