Harbans Lal v. Harpal Chand and others
Case Details
RSA-690-2022 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 117 RSA-690-2022 (O&M) Date of decision: 17.11.2025 Harbans Lal ...Appellant(s) Vs. Harpal Chand and others ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. S.S.Hira, Advocate for the appellant. *** NIDHI GUPTA, J.
Legal Reasoning
The plaintiff No.1 is in Second Appeal against the concurrent judgments and decrees of the learned Courts below, whereby the suit filed by the appellant for separate possession by way of partition alongwith permanent injunction, has been dismissed by both the Courts below. 2. The facts as pleaded in the plaint are that the plaintiff No.1 is owner to the extent of 5 M of land which was purchased by the plaintiffs from defendant No.1 through registered Sale Deed dated 17.09.1990. Father of plaintiffs No. 2 to 4 had also purchased land measuring 22M through registered Sale Deed dated 23.11.1990. Plaintiffs No.1 and 2 had purchased land in the year 1990 and possession was delivered to them by defendant No.1. Defendants No. 2 and 3 had purchased 9 Marlas of land from defendant No. 1 vide Sale Deed dated 29.06.1993. It was pleaded in the plaint that, however, in the above said sale deeds, specific khasra DIVYANSHI 2025.11.19 10:43 I attest to the accuracy and integrity of this document RSA-690-2022 (O&M) - 2 - numbers were not mentioned. Accordingly, plaintiff filed instant suit for separate possession by way of partition alongwith permanent injunction. 3.
Legal Reasoning
It is inter alia submitted by learned counsel for the appellant that both the learned courts below erred while passing impugned judgments and decrees as they failed to notice the fact that some of the respondents /defendants have illegally and unlawfully raised construction over the area more than their share. Some of the respondents claimed that they have purchased particular portion of joint holding. However, the said contention is incorrect, as their vendors were merely co-sharer and they cannot transfer better title than they had to sell particular portion out of joint holding/khata is always deemed to be sale of share and as such. Thus, claim of respondents to be the exclusive possession of particular portion of joint holding is absolutely wrong and contrary to law. 4. Learned counsel for the appellant further submits that both the courts below failed to notice that the facts of case in both the civil suits earlier filed by the respondents were different from the present suit filed by appellant/ Harbans Lal and others for partition. It is pertinent to mention here that earlier suit filed by Respondent /Harpal Chand & Sukhdev Raj was for possession of the land measuring 9 marlas bearing Khewat no.1633 Khatuni no.2045, Khasra no.66/6(8-0) which was purchased by them vide sale deed dated 29.06.1993 in the area of village Khawaspur. 2nd suit filed by the aforesaid respondent was that the land measuring 2 kanal 0 marla out of the land measuring 13 kanal 0 Marla Khewat no.1500/1944, 1501/1945, Kasha no.66//6(8-0) & Kasha DIVYANSHI 2025.11.19 10:43 I attest to the accuracy and integrity of this document RSA-690-2022 (O&M) - 3 - no.66//7/1 (5-0) situated in village Khawaspur for redemption & joint possession after depositing the mortgage amount Rs. 2500/-. It is submitted that in the aforesaid 2nd suit of the respondents for declaration, appellant/plaintiffs were not a party. The parties in litigation are also different in the present suit; plaintiffs sought relief of separate possession by way of partition of the joint khata by metes and bounds by impleading all the co-sharers as party to this case. Therefore, it cannot be said that suit filed by the present plaintiffs is barred under Order 2 Rule 2 CPC or it is hit by the principle of resjudicata. 5. Learned counsel for the appellant further submits that both the courts below failed to appreciate the law and facts of the case in proper perspective by specifically observing that plaintiff failed to set up his counter claim. It is submitted that in the suit for possession filing of counter claim for partition of entire joint land was not possible or maintainable, because earlier suit filed by respondent no.1 & 2, was only for Possession. Whereas appellant and respondents no. 62 to 64 filed suit for Separate possession of their share of land comprising khasra no.66//6(8-0), khata no.1500/1944, khewat/khatauni no. 1500/1944/1331 out of the land measuring 8 kanals 1 marla bearing khasra no.66//6 (8-0), 66/7/1(5-0), and khewat no.2068, 4448, khasra no.66//6 (8-0) bearing khewat/khata no.1501/1945 khasra no.66//7/1 (0-5), situated in village Khawaspur (Piplanwala), Tehsil and District Hoshiarpur entered in fard jamabandi for the year 1987-88 and 2007-08. DIVYANSHI 2025.11.19 10:43 I attest to the accuracy and integrity of this document RSA-690-2022 (O&M) - 4 - 6. It is lastly reiterated that the Sale Deeds executed in favour of the defendants did not mention details of the land. However, these facts have not been appreciated by the learned Courts below. It is accordingly prayed that the present Appeal be allowed; and the impugned judgments and decrees of the learned Courts below be set aside. 7. No other argument is raised on behalf of the appellant. I have heard learned counsel and perused the case file in great detail. 8. I find no merit in the submissions made on behalf of the appellant/plaintiff no.1. A perusal of the record of the case shows that both the Courts below have found by way of concurrent findings of fact fact that the present defendants No.1 and 2 had previously instituted a suit against the present plaintiff for possession of 9 M out of khasra No. 66/6 (8-0). The said suit was decreed in favour of the present defendants No.1 and 2 vide judgment and decree dated 10.12.1996 Ex.DX. Undisputedly, execution was filed by the said defendants No.1 and 2 against the plaintiff. Plaintiff had preferred a Civil Revision No. 5262 of 2009 against the orders dated 06.06.2009 and 31.07.2009 passed by the Executing Court; which was subsequently withdrawn by the plaintiffs vide order dated 14.09.2009 with liberty to take all objections before the Executing Court. Thereafter, the Execution Petition was dismissed as withdrawn being fully satisfied. Possession of the suit property was delivered to defendants No.1 and 2. Accordingly, plaintiffs had filed no objection before the learned Executing Court; and if any objections were taken, the same were dealt by Executing Court. Instead, the plaintiffs had DIVYANSHI 2025.11.19 10:43 I attest to the accuracy and integrity of this document RSA-690-2022 (O&M) - 5 - filed instant suit, which, therefore, was barred by res judicata. Moreover, from the above facts, it clearly follows that 3 Courts as well as the Executing Court have dismissed the objections raised by the plaintiffs and delivered possession of suit property in favour of defendants No. 1 and 2. 9. Moreover, besides the above noted documents on record, even appellant in his cross-examination as PW1 has admitted that Samitri Devi had sold plots to different vendees with specific boundaries. The vendees were accordingly put in possession of their respective plots as per Sale Deeds in their favour. Plaintiff has also admitted in his cross- examination that area of his plot has not been reduced on spot; that Samitri Devi had sold plots of which some plots are lying vacant and in some plots construction has been raised; that she had left passages to approach all the plots; that all vendees are owners in possession to the extent of their share; that Sale Deeds executed by Samitri Devi in his favour are correct; that defendants No.1 and 2 had purchased their land from Samitri Devi and had raised construction over the same. Thus, appellant in his cross-examination as PW1 has admitted the entire case of the defendants. Thus, once the plaintiffs had purchased the plot with specific boundaries in which they have constructed their house and they are in possession of the same, they cannot now seek partition of entire property by way of metes and bounds as prayed for in the present suit. 10. In view of the discussion above, no ground is made out to interfere in the concurrent judgments and decrees of the learned Courts below. The present regular second appeal is hereby dismissed. DIVYANSHI 2025.11.19 10:43 I attest to the accuracy and integrity of this document RSA-690-2022 (O&M) - 6 - 11.
Decision
Pending applications, if any, stand disposed of. 17.11.2025 Divyanshi (NIDHI GUPTA) JUDGE Whether speaking/reasoned: Whether reportable: Yes/No Yes/No DIVYANSHI 2025.11.19 10:43 I attest to the accuracy and integrity of this document