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2014 DIGILAW 455 (PNJ)

Ujjagar Singh v. Malkiat Singh

2014-03-04

PARAMJEET SINGH

body2014
Judgment PARAMJEET SINGH, J. This regular second appeal by plaintiffs is directed against the judgment and decree dated 15.09.2009 passed by learned Additional District Judge, S.A.S. Nagar, Mohali, whereby the appeal preferred by the defendants has been allowed and the judgment and decree dated 08.04.2008 decreeing the suit of the plaintiffs, passed by learned Civil Judge (Junior Division), S.A.S. Nagar, Mohali, has been set aside and the suit of the plaintiffs has been dismissed. For convenience sake, reference to parties is being made as per their status in the civil suit. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for possession of 1/2 share of land in khasra No.594 (0-7) situated at village Manauli, Tehsil Mohali, District Ropar, by way of partition and for permanent injunction and directing the defendants to remove the earth from the common well in the suit property. Long and short of the matter is that parties are recorded co-owners in the suit land and plaintiffs have half share in the same. Defendants had filled the well with earth to affect the rights of the plaintiffs as they were using the well for irrigation and drawing drinking water. It is pleaded in the plaint that ancestors of the defendants tried to take exclusive possession of the suit land by raising construction therein. Plaintiffs filed a suit for injunction against the defendants, which was decreed in favour of the plaintiffs in the year 1987. Defendants again brought building material to raise construction. Thus, plaintiffs have prayed for decree for possession of half share of suit land through partition and directing the defendants to remove earth from the common well situated in the said khasra number. Upon notice defendants appeared and filed their separate written statements. Defendant No.1 in his written statement raised preliminary objections that suit is not maintainable in the present form, defendants are estopped from filing the present suit due to their own act and conduct, plaintiffs have no locus standi to file the present suit as the property has come to his share in the family partition and he is in exclusive possession of the suit property. It was denied that well was being used for irrigation purposes and drawing drinking water. It was averred that irrigation is through nullah which is going through the fields of the parties. It was further averred that construction was made immediately after the partition and parties are in exclusive possession of the property. Defendants No.2 and 3 filed their separate written statement raising preliminary objections that suit is not maintainable in the present form, suit is bad for non-joinder of necessary parties inasmuch as other co-sharers have not been arrayed as parties and suit is bad on account of partial partition. On merits it was averred that a family partition took place between the shareholders and the suit property fell to the share of defendant No.1. The well is not being used for more than 23 years. All the averments in the plaint were denied and prayer for dismissal of the suit was made. Replications were filed by the plaintiffs denying the averments in the written statements and reiterating the averments in the plaint. Court of first instance, on the basis of pleadings of the parties, framed following issues: - “1. Whether the plaintiff is entitled to the possession of the suit property as prayed for? OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether the suit of plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiffs are estopped from filing the present suit on account of their act and conduct? OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Relief.” Parties led their respective evidence. The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiffs for possession by partition and restraining the defendants from raising any type of construction till partition by metes and bounds. Against the judgment and decree of the Court of first instance, appeal preferred by the defendants has been allowed and the judgment and decree of the Court of first instance has been set aside by lower appellate Court. Hence, this regular second appeal. I have heard learned counsel for the parties and perused the record. Learned counsel for the appellant referred to substantial questions of law formulated in the grounds of appeal, which read as under: - “1. Hence, this regular second appeal. I have heard learned counsel for the parties and perused the record. Learned counsel for the appellant referred to substantial questions of law formulated in the grounds of appeal, which read as under: - “1. Whether the suit is maintainable when the defendants have taken a stand that the partition between the parties has already taken place and the plaintiffs have proved that the land in dispute being gair mumkin was not partitioned? 2. Whether the civil Court has jurisdiction to partition the land as the nature of the property has been changed from the agricultural to residential property?” Learned counsel for the appellants vehemently contended that the findings recorded by learned lower appellate Court are not based on appreciation of evidence on record rather are result of surmises and conjectures. Learned lower appellate Court has held that suit is not competent on account of partial partition. Entire land has not been included in the case. Learned counsel further submitted that learned lower appellate Court has failed to mention as to which part of the land has been left out from partition. It was further submitted that there are contradictory stands of the defendants regarding partition. Per contra, learned counsel for the respondents defended the judgment and decree passed by learned lower appellate Court. Learned counsel contended that lower appellate Court has come to right conclusion and findings of fact recorded by it cannot be disturbed in the regular second appeal. I have considered the contentions raised by learned counsel for parties. Perusal of judgment of learned lower appellate Court clearly indicates that the land sought to be partitioned is comprised in khasra No.594 which has been shown to be joint between the parties and is gair mumkin well. Earlier well was in operation and defendants have filled it with earth. Learned counsel for the respondents has failed to point out as to which part of gair mumkin land has been left out from partition. There is no reference to any other gair mumkin land jointly owned by the parties. The suit land is gair mumkin and could only be partitioned under the provisions of Partition Act. The Findings of the learned lower appellate Court are not based on the evidence led by the parties. There is no reference to any other gair mumkin land jointly owned by the parties. The suit land is gair mumkin and could only be partitioned under the provisions of Partition Act. The Findings of the learned lower appellate Court are not based on the evidence led by the parties. Once there is no reference to the particular khasra numbers which have been left out of the partition, the question of partial partition does not arise. It would be appropriate to mention here that non-agricultural land i.e. gair mumkin can be partitioned only under the provisions of Partition Act whereas the agricultural land can be partitioned under the provisions of Punjab Land Revenue Act, 1887. Even if for the sake of arguments it is presumed that parties are still in joint possession of agricultural land, the partition of gair mumkin land does not amount to partial partition because remedies and nature of land for partition under both the Acts are altogether different. In view of above discussion, it is held that the judgment of the learned lower appellate Court is result of misreading of the evidence; rather based on surmises and conjectures and as such is perverse. Substantial questions of law stand answered accordingly. In view of above, present appeal is allowed with costs throughout. Judgment and decree passed by learned lower appellate Court is set aside and the judgment and decree of the Court of first instance is restored. Decree-sheet be prepared.