Achhar Chand vs Jai Lal

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 16.05.2009, passed by the learned District Judge, Una, H.P. in Civil Appeal No. 74 of 2008.

Material facts necessary for adjudication of this Regular Second Appeal are that the Appellant-Plaintiff (hereinafter referred to as "the Plaintiff" for convenience sake) had instituted a suit for permanent injunction restraining the Respondent-Defendant (hereinafter referred to as "the Defendant" for convenience sake) from changing the nature, raising construction or taking forcible possession of the land measuring 333.50 sq. meters comprised in Khasra No. 616, Khatauni No. 647, Khewat No. 318, as entered in the Jamabandi for the year 1994-95, situate in Up Mohal Behli, Mauja Una, District Una, H.P. till final partition.

The suit was contested by the Defendant. The Defendant has averred that earlier the land was joint of the parties alongwith other co-sharers and the same was partitioned by the A.C. Ist Grade in case No. 103/1997, decided on 06.06.1997 and Sanad Taksim (instrument of partition) was duly prepared on 31.08.1998, and that the Plaintiff took active part in the partition proceedings and he was represented by his counsel. The mode of partition is stated to have been prepared on the basis of the statements of the parties. The Defendant further averred that the Plaintiff, on the other hand, during settlement proceedings, got recorded himself in exclusive hissadari possession over the suit land to the extent of half share and as such the Defendant and his other family members got their share separated and, as such, there is no question of jointness, as alleged by the Plaintiff. According to the Defendant, Khasra No. 616/2 was vacant at the spot. The learned trial Court framed the issues on 20.12.1998. The suit was dismissed by the learned trial Court on 20.10.2008. The Plaintiff preferred an appeal before the learned District Judge, Una, H.P. The learned District Judge, Una dismissed the appeal on 16.05.2009. This Regular Second Appeal is preferred against the judgment and decree dated 16.05.2009.

Mr. T.S. Chauhan, learned Counsel for the Appellant has strenuously argued that the judgments and decrees passed by both the Courts below are against the principles of law. According to him, both the Courts below have not correctly appreciated the oral as well as documentary evidence. According to him, no partition proceedings were ever instituted and the Plaintiff is in joint owner-ship of the suit land.

Mr. R.P. Singh, learned Counsel for the Respondent has supported the judgments and decrees passed by both the Courts below. According to him, the partition took place between the parties and an instrument of partition was also drawn on 31.08.1998. According to him, the orders passed by the revenue authorities were up-held up to the High Court.

I have heard the learned Counsel for the parties and gone through the pleadings carefully.

Plaintiff has appeared as PW-1. He has tendered his evidence by way of affidavit. He has supported the averments contained in the plaint. He has admitted in his cross-examination that out of total land measuring 1 Kanal 8 Marlas, 14 marlas land was purchased, but denied that the parties came in possession of the same jointly.

Defendant has examined Dalip Singh, Patwari. He has proved the statement Ex.DW-1/A made by the Plaintiff. Defendant has also tendered his evidence by way of affidavit. He has supported the pleadings contained in the written statement. The Defendant has duly proved on record the certified copies of proceedings Ex.DW-1/A, Ex.D-1 to Ex.D-3 in the partition case No. 103 of 1997, which was decided by the A.C. 1st Grade, Una, showing that vide Sanad Taksim Ex. D-2, the Defendant alongwith Madan Lal, Kuldip Chand, sons of Atma Ram were allotted Khasra No. 615 and 616/2, total measuring 272-80 out of joint land bearing Khasra No. 615 and 616 while the Plaintiff was allowed Khasra No. 616/1 in partition measuring 282-70 sq. meters. A bare perusal of the documents placed on record and proved by the Defendant makes it abundantly clear that the orders passed by the revenue authorities have been up-held by this Court in C.W.P. No. 791 of 2005, decided on 09.11.2005. The Defendant has duly proved on record that the partition has taken place and, thus, the plea raised by the Plaintiff that no partition has taken place is factually incorrect. It is settled law that after completion of partition proceedings, joint status of the parties comes to an end. The Plaintiff has consented for the partition as per Ex.DW-1/A. Consequently, the findings recorded by both the Courts below are based on the correct appreciation of oral as well as documentary evidence.

Accordingly, in view of the observations made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed.