Ramdhan vs Dalip Singh and others

L.N. Mittal, J.

C. M. No. 11305-C of 2011 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 23 days in filing the appeal is condoned.

C. M. No. 11306-C of 2011 :

Allowed as prayed for.

Main Appeal :

Defendant no.1 Ramdhan, having failed in both the courts below, has filed the instant second appeal.

Suit was filed by respondents no. 1 to 3/plaintiffs against defendant no.1-appellant Ramdhan and defendant no.2 Gopal (respondent no.4 herein). Both the parties are real brothers. Plaintiffs alleged that suit land measuring 05 kanals 11 marlas is joint land of the parties, each having 1/5th share therein. The said land has not yet been partitioned. It comprises of houses and ghers. Accordingly, the plaintiffs sought partition of the joint land and separate possession of their share. Defendants alleged in the written statement that plaintiffs have not mentioned Khewat, Khasra and Killa numbers of the suit land. It was also pleaded that the suit land is agricultural land and it does not comprise of houses and ghers, and therefore, jurisdiction of Civil Court is barred. It was alleged that only plaintiff no.1 - Dalip Singh has constructed house in area measuring 10 marlas and the remaining land is agricultural land being cultivated by the parties in equal shares. Defendant no.1 claimed to have constructed a school in the suit land over 2100 sq. yds. area approximately with 35 rooms and boundary wall by spending huge amount in the year 1990. The parties also sold their land measuring 13 kanals 12 marlas on 19.01.2006 and it was agreed that if school constructed by defendant no.1 is found on excess area than his share, the other brothers will sell their area to defendant no.1, but the plaintiffs have now resiled from the oral family settlement/agreement arrived at in December 2005. It was also pleaded that plaintiffs had filed application for partition of the suit land, which was rightly dismissed by Assistant Collect Ist Grade, Sonepat, after visiting the spot. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Sonepat, vide judgment and decree dated 19.11.2010, decreed the plaintiffs'' suit and passed preliminary decree for partition of the suit land, holding that the parties have equal shares therein. First appeal preferred by defendant no.1 has been dismissed by learned Additional District Judge, Sonepat, vide judgment and decree dated 16.05.2011. Feeling aggrieved, defendant no.1 has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

Revenue record reveals that the suit land is joint land of the parties. Even defendants, in the written statement, impliedly admitted the suit land to be joint. Stand of defendants that other brothers had agreed to sell the excess land to defendant no.1, if his school is found on excess area than his share, remains unsubstantiated. There is no cogent evidence to prove the said version of defendants. On the other hand, defendant no.1 is resisting the partition because he is enjoying excess area than his share. However, defendant no.1 admitted in the witness-box that the suit land is ancestral and has not yet been partitioned. Thus, it stands admitted that all the five brothers i.e. plaintiffs and defendants have equal share in the suit land, which is their joint land and has not yet been partitioned.

As regards jurisdiction of Civil Court, it is own stand of the defendants that defendant no.1 has raised construction of school rooms in the suit land. They have also pleaded that plaintiff no.1 has also constructed house in the suit land. It is also the stand of the plaintiffs that the suit land comprises of houses and ghers and is not agricultural land. Consequently, Civil Court and not Revenue Court has jurisdiction to partition the suit land. In addition to it, Assistant Collector Ist Grade has already held in the partition suit that he has no jurisdiction to partition the suit land, which is no longer agricultural land. Defendants were also parties to the said order, which had attained finality. Consequently, it cannot be said that Revenue Court had jurisdiction to partition the suit land and Civil Court had no jurisdiction to do so.

For the reasons aforesaid, I find no merit in this second appeal, which is completely frivolous. In view of admitted facts, courts below had no option, but to decree the plaintiffs'' suit for partition. The instant litigation is result of greed and dishonesty of defendant no.1-appellant, who has usurped excess area than his share in the joint land. No question of fact or question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine.