Dharam Singh and Others vs Suresh and Others

L.N. Mittal, J.—This is second appeal by defendants No. 17 to 22 who have been unsuccessful in both the courts below.

Suresh respondent No. 1 filed suit against appellants and respondents No. 2 to 16 for partition of suit property comprised of plots No. 1041/1 and 1042/2 situated in abadi deh of village Nilothi alleging that in some earlier partition suit regarding abadi deh of the village, the aforesaid plots were allotted to Munshi and his brother Risala and they became co-sharers in possession of the suit plots in equal shares. Plaintiff claimed to have purchased half share of Munshi in suit plots vide registered sale deed dated 30.3.1993. Accordingly, plaintiff claiming himself to be co-sharer in the suit plots to the extent of half share sought partition of the suit plots.

Defendants No. 17 to 22 admitted that in the partition of abadi deh of the village, suit plots were allotted to Munshi and Risala. However, defendants No. 17 to 22 pleaded that they are in adverse possession of the suit plots and have become owners thereof by adverse possession. It was also pleaded that decree regarding partition of abadi deh of the village was never executed.

Learned Civil Judge (Junior Division), Bahadurgarh vide judgment and decree dated 9.9.2004 decreed the plaintiff''s suit and passed preliminary decree for partition of the suit plots holding the plaintiff to be having half share therein. First appeal preferred by defendants No. 17 to 22 has been dismissed by learned Additional District Judge, Jhajjar vide judgment and decree dated 23.1.2008. Feeling aggrieved, defendants No. 17 to 22 have preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellants vehemently contended that the plaintiff has not even pleaded as to when the earlier suit for partition of abadi deh of the village was instituted nor there is any evidence to depict that the decree for partition passed in that suit was ever executed. On the other hand, counsel for respondent No. 1/plaintiff contended that even Kanwar Singh DW1, a witness of contesting defendants/appellants, has admitted that at the time of partition of abadi deh, proprietors were allotted same land in abadi deh which was in their possession.

I have carefully considered the rival contentions. Since the appellants in the written statement admitted that in partition of abadi deh of the village, the suit plots were allotted to Munshi and his brother Rishala, no further pleading or evidence regarding the said partition was required at the hands of the plaintiff. Plaintiff has duly proved the sale deed dated 30.3.1993 whereby he purchased half share in the suit plots from Munshi. Consequently, the suit for partition has been rightly decreed holding the plaintiff to be co-share in the suit plots to the extent of half share. The stand of defendants No. 17 to 22 that they have become owners of the suit plots by adverse possession has not been substantiated by cogent evidence. Moreover, Kanwar Singh DW1 stated that the possession of Dharam Singh defendant No. 17 is permissive being Brahmans of Munshi etc. Thus, the evidence of the defendants themselves reveals that they were not in adverse possession of the suit plots. In any event, it is not established that the appellants became owners of suit plots by adverse possession. There is concurrent finding by both courts against the appellants. Lower appellate court is final court of fact. The concurrent finding of both the courts below is based on proper appreciation of evidence and cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. On the other hand, in view of admitted position that Munshi and Risala were owners of the suit plots having been allotted in partition of the abadi deh of the village, the plaintiff''s suit had to be decreed because the plaintiff has proved that he has purchased half share of Munshi in the suit plots.

For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed.