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IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH Page 1 of 9 9 (cid:1) 116 RSA-5957-2019(O&M) Date of decision: 02.04.2025 Kewal Krishan shan & Another Kasturi Lal & O l & Others Vs. ...Appellant(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Narinder Kumar Vadeh for the appellants. *** dehra, Advocate NIDHI GUPTA, PTA, J. CM-16980-C- -2019 This is an application u for n under Section 151 CPC for condonation o on of delay of 55 days in re-filing the g the appeal. After going through the on, the contents of the application, which is suppo upported by affidavit of Hardeep Si ar p Singh, Clerk to Narinder Kumar Vadehra, Advo Advocate, Punjab and Haryana High me High Court, Chandigarh, the same is allowed sub subject to all just exceptions and d he nd delay of 55 days in re-filing the present appea peal is condoned. MAIN CASE Plaintiffs are in second a nt d appeal against the concurrent judgments and s and decrees of the learned Courts led urts below whereby the suit filed by the appella ellants for separate possession of 2
Legal Reasoning
ay of 24/42 share of plaintiff by way SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) of partition by n by metes and bounds out of resid Page 2 of 9 9 (cid:1) nal residential plot measuring 2 kanal 2 marlas; alon along with consequential relief of pe en of permanent injunction, has been dismissed with with costs by both the Courts below elow. 2. The parties shall hereinaft eir inafter be referred to as per their status before ore the learned trial Court i.e. the nd the appellants as “plaintiffs” and respondents a ts as “defendants”. 3. The dispute is inter se fam ns family. The plaintiffs are the sons of Harbans La s Lal son of Bhagat Ram son of Da o.1 f Damodar Dass. Defendant No.1 Kasturi Lal is s l is son of Bhagat Ram; defendants uri ants No.2 to 4 are sons of Kasturi Lal son of Bha Bhagat Ram; and defendants No.5 a of o.5 and 6 are the grandchildren of Milkhi Ram so son of Bhagat Ram. 4. Brief facts of the case as st he as stated in the plaint are that the appellants/pla /plaintiffs had filed a suit for separ he parate possession of share of the plaintiffs by w by way of partition by metes and b lot nd bounds out of residential plot measuring 2 k 2 kanal 2 marlas comprised in khe .88 khewat No.42/39 khatauni No.88 khasra No.70/ .70/suit property as entered in the - the Jamabandi for the year 2008- 09 situated in d in the Revenue Estate of village sil age Keshopur, H.B. No.249, Tehsil and District Gu ct Gurdaspur. It was the pleaded cas tiff case of the plaintiffs that plaintiff No.1 Kewal Kr al Krishan along with Harbans Lal h ing al had purchased land measuring 14 kanal 4 ma marla comprised in khatauni No.9 - o.91 Rect No.10 Killa No.23/1 (1- 12) Rect No.2 o.20 Killa No.3/1/1 (1-10), 3/1/2(3 m /2(3-12), 8/1(6-1), 8/2 (1-19)from Milkhi Ram. A m. After the death of Harbans Lal, as Lal, his share in joint holding was SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) inherited equ equally by the plaintiffs being succ Page 3 of 9 9 (cid:1) as successors of Harbans Lal. It has been alleged t ed that plaintiffs are co-sharer to t re to the extent of 2089/3571 share in the entire j ire joint holding measuring 178 kan tial kanals 13 marlas. The residential plot in dispute pute is measuring 17 kanals north a ms rth and south side and 22 karams on eastern an n and western side and same has of has been left for the purpose of construction o on of residential houses. It has been iffs been further alleged that plaintiffs have construc tructed their houses adjacent to th in to the eastern side of the plot in question and and they are using the plot in d eir in dispute as the part of their courtyard and and haveli jointly with Kasturi La as ri Lal defendant No. 1 who has constructed th d three rooms and one small roo eir room. After the demise of their father, the pla e plaintiffs being co-sharers to the he the extent of 24/42 share in the residential plo l plot in question measuring 2 kanal full anals 2 marlas are not deriving full benefits accor ccording to their share in the reside do sidential plot in question. They do not want to k to keep their share joint anymore w ant re with the defendants and want to get it separ eparated by way of partition by me as metes and bounds. Further it has been alleged t ed that defendants no. 1 to 4 have to have started taking illegal steps to grab the prop property in dispute. They have sra e illegally got entries of Khasra girdawaries in s in connivance with the reven of venue officials in the name of defendant no t no. 1 showing him in exclusive p ey e possession and after that they have started ted passing illegal threats to disp lly, dispossess the plaintiffs illegally, forcibly and t nd to raise construction on the e ut e entire plot in dispute without getting the s e same partitioned by metes an are s and bounds. Their threats are SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) continuously c sly causing stress and strain to plain Page 4 of 9 9 (cid:1) get plaintiffs and plaintiffs want to get there share se e separated by partition by metes a ve es and bounds. The plaintiffs have requested the the defendants to effect partition ith tition by metes and bounds with mutual conse onsent by separating the 24/42 he /42 share of plaintiff and the construction on already raised be evaluated ed ted and the same be assessed according to t to the share of the parties and al om d also requested to deposit from making any ny alteration in the existing pos ny position and not to raise any construction w on without getting the plot in dispu nts ispute partitioned but defendants flatly refused. sed. Hence, the present suit was file s filed on 06.08.2012. 5. Upon notice, the defenda led endants had appeared and filed written statem tatement resisting the suit of th al f the plaintiffs. Besides formal objections, the , the defendants stated that the lan for land in question is being used for residential hou l houses; but there are other killa n ed illa numbers which are being used for other non non-agriculture purposes which ha by h have not been incorporated by plaintiffs. Tho Those killa numbers have been c ve en concealed and plaintiffs have intentionally f lly filed the present suit only regar in egarding the suit land which is in exclusive poss possession of the defendants as the tial they have raised their residential houses in suit suit land. It was admitted that the p for he plot in dispute is being used for residential pu l purpose. It has been submitt ve mitted that the plaintiffs have themselves co s constructed their residential hou of houses in the abadi deh area of the join holdi olding which has not been include he cluded in the present suit by the SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) plaintiffs inten intentionally. Denying all other ave Page 5 of 9 9 (cid:1) , a averments made in the plaint, a prayer for dism dismissal of the suit with costs has b has been made. 6. Replication was filed where he hereby the assertions made in the written statem tatement were denied and those ere hose made in the plaint were reiterated. 7. From the pleadings of the re the parties, following issues were framed by the the learned trial Court:- “i. Whether the plaintiff is en ate is entitled to get the separate possession of 24/42 share of the by the residential plot in question by PP way of metes and bounds? OPP ii. Whether plaintiff is entitled to g of d to get the consequential relief of permanent injunction as prayed fo ed for? OPP iii. Whether the suit of the plaintif aintiff is not maintainable? OPD iv. Whether plaintiff has not co an t come to the court with clean hands? OPD v. Whether partition has already the eady taken place between all the co-sharers and they are there in ver re in his exclusive possession over the plot in question? OPD vi. Relief.” 8. On the basis of pleading ary adings and oral & documentary evidence addu adduced before it, the learned trial nd rial Court decided issues No.1 and 2 against the the plaintiffs and in favour of the 5 the defendants; issues No.3 to 5 against the de e defendants being not pressed as ht as “...defendants has not brought on file any evi y evidence in support of these issue the issues nor learned counsel for the defendants ha s have addressed any arguments on ly, ts on these issues...”. Accordingly, SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) vide judgmen ment and decree dated 04.10.201 Page 6 of 9 9 (cid:1) as .2016, suit of the plaintiffs was dismissed with with costs. The appeal filed by the ith the plaintiffs was dismissed with costs by the le learned Additional District Judge, nd dge, Gurdaspur vide judgment and decree dated 1 ted 18.12.2018. Hence, present seco second appeal. 9. Learned counsel for the he the plaintiffs submits that the learned Court ourts below have incorrectly held ot held that the plaintiffs have not approached th d the Court with clean hands. It he . It is submitted that in fact, the learned Court ourts below have not considered th rd d the evidence brought on record by the plaintif intiffs in correct perspective. It is co rty s contended that the suit property is comprised ed in khasra No.70; and the plain ed laintiffs have categorically stated that khasra No a No.70 pertains to gairmumkin ab er abadi and that there is no other such land wh which is described as gairmumkin is mkin abadiin the Jamabandi. It is submitted tha that however, despite the categoric he oric assertion of the plaintiffs, the learned Courts ourts below have held that the land les and comprised in other rectangles and killas is a is also gairmumkin; and as such, en uch, the same should have been subject matter atter of the suit. Accordingly, the le eld e learned Courts below have held that the plaint laintiffs had concealed material fac of l facts and consequentially, suit of the plaintiffs w iffs was dismissed for partial partiti
Legal Reasoning
ds rtition. Learned counsel contends that part of th f the said land is gairmumkin area nd rea and is part of agricultural land and therefore, fore, it could not have been conside nly sidered as gairmumkin abadi. Only khasra No.70 i .70 is the joint property which is gai me s gairmumkin abadi; and the same cannot be eq equated with the gairmumkin ag he in agricultural land. As such, the SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) finding of th f the learned Courts below on i Page 7 of 9 9 (cid:1) lly n issues No.1 and 2 is wholly erroneous and and liable to be set aside. It is state as stated that sufficient evidence was led by the pl e plaintiffs from the relevant Rev er Revenue Record that the other properties are are not gairmumkin abadi. Thus, th ed s, the observations of the learned Courts below low regarding non-joining of all ng. all co-sharers are also wrong. Moreover, th , the learned Courts below have ed have misread and misconstrued evidence as al as also the testimonies of the plaint ing laintiff witnesses. There is nothing on record to s to show that the property in dispu t is dispute has been partitioned. It is accordingly pr ly prayed that the impugned judgme gments and decrees be set aside. 10. 11. No other argument is made ade on behalf of the appellants. I have heard learned cou nd counsel for the appellants and perused the ca e case file in great detail. 12. I find no merit whatsoeve on ever in the submissions made on behalf of the the appellants/plaintiffs. Perusal of ws l of the record of the case shows that it has bee been established on record that the are t the plaintiffs and defendants are co-sharers of J of Joint Khata including khasra No. ndi No.70 as evident from Jamabandi (Ex.P1). It is t is the case of the plaintiffs that k - at khasra No.70 was left for co- sharers for re r residential purposes and that b ed at both parties have constructed their houses t ses thereupon. However, the plaint he laintiffs had failed to disclose the existence of o of other gairmumkin/non-agricultu art cultural land in Joint Khata apart from khasra sra No.70. Whereas, in fact, the .70 the Joint Khata of khasra No.70 includes othe ther gairmumkin areas (khata No. ich No.42/39 khatoni No.87), which SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) plaintiffs had f ad failed to include in the suit land Page 8 of 9 9 (cid:1) ely land. The plaintiffs had selectively sought partitio rtition only of khasra No.70 to ser is serve their own interests. This is established fr d from the unequivocal testimony ses ony of the defendant witnesses which has not not been rebutted by the plaintiff aid intiffs by cross-examining the said witnesses. DW . DW1 had clearly testified that pla in t plaintiffs’ houses are located in other gairmum mumkin areas. Admittedly, the lear iffs learned counsel for the plaintiffs had not cross ross-examined DW1 on this point nt oint, thus, making his statement legally accepta eptable. 13. Further, there were defici ’ eficiencies even in the plaintiffs’ evidence. The The site plan (Ex.P3) produced by th in by the plaintiffs was not proved in accordance wi e with law as Draftsman of the said as said site plan was not produced as a witness. Mo Moreover, even the said site plan d as an does not depict the plaintiffs as owners or occ occupants of the disputed proper he perty. The said fact supports the claim of DW1 DW1 that plaintiffs are not residin he siding in the disputed area. The plaintiffs even ven failed to provide any photogra at ographs or evidence to prove that defendants we s were raising new constructions. D ses s. DW1 testified that their houses were built lo t long before the suit was filed. 1 led. Even this assertion of DW1 remained unch unchallenged in cross-examination. vit ion. Moreover, PW1 in his affidavit in examinatio ation-in-chief did not mention tha to that defendants were trying to raise new cons construction. Even further, the plain ow plaintiffs did not demonstrate how the proposed sed construction would harm their ide their rights. They did not provide any details of ls of what steps defendants took t uld ok to construct or how it would SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1) affect them. m. Plaintiffs also did not provid Page 9 of 9 9 (cid:1) er rovide any evidence that other gairmumkin nu in numbers were not part of gairmu rmumkin abadi. 14. It has also come on record sra ord that the disputed land (khasra No.70) had a ad already been partitioned amo 80 among the co-sharers in 1980 whereafter re r respective houses were built. In nt In actual fact by way of present suit, the plaint laintiffs had sought correction of Re sh f Revenue Record, and not a fresh partition. Ho However, the plaintiffs were n er e not able to provide proper calculation of of their claimed share (24/42) and ilty ) and were therefore, found guilty of concealing ling material facts. It was in this ba by is background that it was held by both the Cou Courts below that partial partition he ition cannot be permitted as the plaintiffs had had sought partition of only khasr he hasra No.70 while excluding the other joint pro t properties. Ld. Counsel for the appel or ppellants is unable to dispute or controvert the gs. t the above said facts and findings. 15. 16. 02.04.2025 Sunena
Decision
In view of the above, prese resent appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. (Nidhi Gupta) Judge Whether speaki Whether report eaking/reasoned: Yes/No Yes/No portable: SUNENA 2025.04.08 10:55 I attest to the accuracy and integrity of this document (cid:1)