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2014 DIGILAW 152 (PNJ)

Onkar Singh v. Jarnail Singh

2014-01-17

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J.:- This is plaintiff’s second appeal challenging the judgment and decree of the first appellate Court dated 04.12.2012 whereby appeal filed on behalf of the defendant-respondent, against the judgment and decree dated 19.05.2011 of the trial Court decreeing the suit of the appellant, was accepted and his suit was ordered to be dismissed. 2. Parties to the suit are real brothers. It is the case of the plaintiff-appellant that they have joint land, comprising a Kotha and Tubewell, measuring 10 Marlas comprised in Khewat No.110, Khatauni No.185 bearing Khasra No.36/11/1 situated within the revenue estate of village Manghera, Tehsil Tohana, District Fatehabad and no partition of the same ever took place. There remains a dispute about the suit land with regard to its use and occupation thus, the appellant wants to partition the joint land. Hence necessity arose to file the instant suit seeking a decree for possession of the suit property by way of partition, as prayed. 3. The case set out by the defendant-respondent in the written statement is that though the land in dispute was joint of the parties to the dispute but the same was partitioned in a family settlement and after that the parties are in possession of their respective portions as owners. Even after the partition, the defendant constructed a Kotha and installed a Tubewell at his own expenses. It was denied that the plaintiff was entitled to seek partition of the property in dispute. All other averments were denied and dismissal of the suit was prayed for. 4. No rejoinder was filed on behalf of the plaintiff-appellant. 5. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiff is owner of disputed land to the extent of half share? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to the relief as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether the plaintiff has suppressed the true and material facts from the Court? OPD 6. Whether the Civil Court has got no jurisdiction to try the present suit? OPD 7. Relief. 6. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether the plaintiff has suppressed the true and material facts from the Court? OPD 6. Whether the Civil Court has got no jurisdiction to try the present suit? OPD 7. Relief. 6. After hearing both the parties and perusing the case file, the trial Court under issues No.1 and 2 held that the land in dispute was joint of the parties and as such the Court directed its partition by passing a preliminary decree. 7. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-respondent filed an appeal before the first appellate Court which was accepted vide judgment and decree dated 04.12.2012. While accepting the appeal, the first appellate Court observed as under: “While accepting the claim of the respondent-plaintiff, the learned trial Court in para 10 of the judgment observed the land in dispute to be joint of the parties to the dispute. It was also observed that the defendant failed to prove that he paid a sum of Rs.40,000/- to the plaintiff in lieu of partition of the land in dispute. Though it was observed that the parties to the dispute are separate by metes and bounds but the property in dispute is still their joint and so, ordered its partition. The contention of learned counsel for the appellant-defendant is that when the parties to the dispute are admittedly separate by metes and bounds, then the question of jointness of the property in dispute does not arise. In this regard besides referring to the testimony of Onkar Singh plaintiff, a reference has been made to the testimony of Karnail Singh PW3 and document Ex.D2. It was admitted by Onkar Singh plaintiff that on the basis of partition, he came in possession of land comprised in specific Killa numbers. Secondly, he admitted the power connection of the tubewell over the land in dispute to be in the name of appellant-defendant. He further admitted having a separate tubewell connection in his land and the partition of the total Khewat having taken place about 7/8 years back. Similar is the version of Karnail Singh PW3 and who admitted the parties to the dispute to be separate in mess and boarding. He further admitted having a separate tubewell connection in his land and the partition of the total Khewat having taken place about 7/8 years back. Similar is the version of Karnail Singh PW3 and who admitted the parties to the dispute to be separate in mess and boarding. So, when the parties to the dispute are separate in mess and boarding and have separate cultivation of their respective land, then it cannot be said that the property in dispute is still their joint. Reliance in this regard has been placed on the ratio of law laid down in case of Bhoop Singh versus Kurda Ram and another 2011(2) RCR (Civil) 560 and wherein it was held that when the parties are in exclusive possession of their respective portions of the ancestral property for a number of years, then a suit for partition is completely misconceived. The contention of learned counsel for the respondent-plaintiff is otherwise and who argued that since in the revenue record, the land in dispute has been shown to be still joint and the partition has not been given effect, then the same would be treated as joint and the cosharers, would continue to be joint owners. Reliance in this regard has been placed on the ratio of law laid down in cases of Milkha Singh (since deceased) through his legal representatives Vs. Makhan Singh and others 2008(3) Latest Judicial Reports 589 and Shri Sham Singh (since deceased) through his LRs and others Vs. Shri Sarwan Singh and another 2010(4) Latest Judicial Reports 840. There is no dispute about the ratio of law laid down in these cases but the facts of those cases were different from the present one. In those cases though a deed of partition was prepared but the same was not acted upon and given effect in the revenue record. But this is not so in the case in hand and wherein parties to the dispute are admittedly in possession as owner of their separate parcels of land on the basis of partition in pursuant to the decree dated 13.6.1996 of the Civil Court being given effect while sanctioning mutation No.496. Even it is not disputed by the plaintiff as well as his witness Karnail Singh that the parties to the dispute are in possession of separate parcels of land for the last more than a number of years. Even it is not disputed by the plaintiff as well as his witness Karnail Singh that the parties to the dispute are in possession of separate parcels of land for the last more than a number of years. Even, they have separate tubewells and for which power bills are being paid by them. While leading evidence, the appellant-defendant placed on the file power bills with regard to tube well connections as Ex.DW3/B to Ex.DW3/G and the respondent having a separate power connection bearing No.BR53-2035. So, all this shows that the parties to the dispute are separate by metes and bounds and the land in dispute cannot be said to be their joint. The ratio of law laid down in case of Bhoop Singh Versus Kurda Ram and another (supra) is fully applicable to the facts of the present case. Moreover, when the respondent-plaintiff himself admitted the partition of the joint property of the parties to the dispute and was having separate possession for a number of years, so, that is a best admission and the same can be relied upon to show the factum of partition of the property in dispute. A reference in this regard may be made to the ratio of law laid down in case of Raj Kumar and another Vs. M/s Chiranji Lal Ram Chand, Ludhiana and others AIR 1996 SCW 349 . So, the findings of the learned trial Court that the property in dispute is still joint of the parties to the dispute and respondent-plaintiff is entitled to seek its partition claiming ½ share are not sustainable in the eyes of law and are ordered to be reversed.” Aggrieved from the aforesaid judgment and decree of the first appellate Court, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether in the facts and circumstances of the present suit the impugned judgment and decree passed by ld. First appellate Court is liable to be set aside? 2. Whether in the facts and circumstances of the present suit, fact that the family partition took place between the parties to the lis, is proved or not? 3. Whether getting the entries (regarding the family partition), recorded in the revenue record is not necessary for proving the fact whether partition took place or not? 8. 2. Whether in the facts and circumstances of the present suit, fact that the family partition took place between the parties to the lis, is proved or not? 3. Whether getting the entries (regarding the family partition), recorded in the revenue record is not necessary for proving the fact whether partition took place or not? 8. In support of his case, counsel for the appellant has vehemently argued that the lower appellate Court has wrongly concluded that parties to the dispute are separate by metes and bounds and the land in dispute is not joint, as both the parties are in possession of the separate portions of the land and having separate Tubewell connections. According to the counsel, while passing the impugned judgment and decree, the lower appellate Court has ignored the fact that the defendant-respondent has not pleaded the factum of partition and making of payment of Rs.40,000 to the appellant in his written statement. Moreover, no entry is reflected in the revenue record regarding partition of Gair Mumkin land and the Tubewell, and thus, the observations of the first appellate Court that both the parties are in possession of their respective shares are wrong and based upon surmises and conjectures. 9. It is further case of the appellant that the lower appellate Court has not considered that there were material contradictions in the version of the defendant-respondent in the written statement and his testimony, and the Court has failed to consider the law point arising in the appeal in its true perspective; and thus, the substantial questions of law, as raised, do arise in this appeal for consideration of this Court. 10. I have heard learned counsel for the appellant and perused the judgments and decrees of the Courts below. 11. A perusal of the findings recorded by the lower appellate Court would show that the same have been recorded on reappreciation of evidence. It has been noticed by the first appellate Court that in his statement the appellant has admitted that on the basis of partition he came in possession of the land comprised in specific Killa numbers. He also admitted the power connection of the Tubewell over the land in dispute to be in the name of defendant-respondent. He further admitted having a separate Tubewell connection in his land and partition of the total Khewat having taken place many years back. He also admitted the power connection of the Tubewell over the land in dispute to be in the name of defendant-respondent. He further admitted having a separate Tubewell connection in his land and partition of the total Khewat having taken place many years back. Similarly, Karnail Singh PW-3 admitted that parties to the dispute were separate in mess and boarding. Even it is not in dispute that the parties to the dispute are in possession of the separate portions of land for the last more than a number of years. All this shows that the parties to the dispute were separate by metes and bounds and the land in dispute cannot be presumed to be still joint. 12. It may further be noticed that even if on the basis of the evidence on record a different view is possible, this Court will not substitute its own view with the findings recorded by the first appellate Court in exercise of its jurisdiction under Section 100 CPC. 13. The finding of fact on the basis of the evidence on record has been recorded with regard to partition of the suit land which does not warrant any interference by this Court. Thus, no substantial question of law, as raised, arises at all in this appeal. 14. No merits. 15. Dismissed.