Mela and Others vs Darshan Singh

N.K. Kapoor, J.—This is Plaintiffs'' regular second appeal against the judgment of the Additional District Judge, Jalandhar, reversing the judgment and the decree of the trial Court whereby the suit filed by the Plaintiffs was decreed.

Briefly put, the Plaintiffs filed a suit for possession by way of partition of joint holding comprised In Khasra No. 151/2 measuring I kanal 18 Marias, The Plaintiffs further alleged that they have 1/2 share and the remaining 1/2 Is owned by the Defendant, Since the Defendant did. not allow the Plaintiffs to derive full benefit of their share and as such the Plaintiffs want partition of the joint land by metes and bounds.

The Defendants in his written statement denied fact that the Plaintiffs are joint owners in the property in dispute to the extent of 1/2 share.

On the pleadings of the parties, following issues were framed:

Whether the Plaintiffs are in possession of the suit property. If so, to what effect? OPR

Whether the Plaintiffs are the joint owners of the suit property. If so, what is their share? OPP.

Whether the suit is properly valued for the purposes of court fee and jurisdiction OPD.

Relief.

This trial Court decided issue Nos. 1 and 2 in favour of the Plaintiffs. Issue No. 3 was decided against the Defendant and in favour of the Plaintiffs and thus the trial Court granted a preliminary decree for partitioning of the joint property.

Before the lower appellate Court, the Appellant urged that the Plaintiff in his statement in the Court has referred to the family partition. If the Plaintiff has alleged that there has been a family partition, the question of partitioning of the joint holding does not arise. The lower appellate Court relying upon the statement of the Plaintiff, reversed the judgment and decree of the trial Court.

Before me, the learned counsel for the Appellants has referred to the documentary evidence of the record i.e. copy of the sale deed Exhibit P-2 on the basis of which the Plaintiffs have become owner of the suit property and so contended that the same clearly record Plaintiffs as owner of 1/2 share of the suit property. Earlier to the Plaintiffs, admittedly, Smt. Swami was owner of 1/2 of the suit land which she sold vide the above mentioned sale deed. Besides this, counsel drew my attention to the written statement filed by the Defendant wherein so such plea had been taken i.e. the suit land stands partitioned between the parties. The counsel further urged that, in fact, the Defendant has denied the ownership of Plaintiffs in respect of the suit property. I have carefully examined the written statement, copy of the sale deed and the evidence led with a view to prove the due execution of the sale deed and other evidence led by the parties in support of their respective contentions and find that except for the bald statement of the Plaintiff making reference of family settlement, there is no other evidence oral or documentary by which it could even by remotely deduced that the suit land at any time had been partitioned between the partly. It cannot be jointly owned in revenue record as well. It is well settled that unless a joint khata is divided by metes and bounds, co-shares continue to be its joint owners. The finding of the lower appellate Court holding that the land stands partitioned is unsustainable in law. I, accordingly, accept the appeal, set aside the judgment and decree of the lower appellate Court and affirm the judgment and decree of the trial Court. The parties will, however, bear their own costs.