Satpal vs Surjit Singh

Arun Palli, J.

CM No. 13055-C of 2012

For the reasons set out in the application, which is duly supported by an affidavit, delay of 50 days in filing the appeal is condoned. Application stands disposed of.

CM No. 13056-C of 2012

For the reasons set out in the application, which is duly supported by an affidavit, delay of 22 days in re-filing the appeal is condoned.

Application stands disposed of.

RSA No. 4692 of 2012 (O & M)

Suit filed by the plaintiffs was decreed by the learned trial Court vide judgment and decree dated 07.05.2010. Appeal preferred against the said decree failed and was accordingly dismissed by the learned First Appellate Court vide judgment and decree dated 13.03.2012. That is how the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In a suit filed by the plaintiffs, they prayed for separate possession of specific portion by way of partition of the suit property and also consequential relief of injunction restraining the defendants from alienating the same.

In short, the case set out by the plaintiffs was that the parties to the lis were joint owners of the properties as detailed in the headnote of the plaint. Previously, Bakshi father of the parties was the owner of the suit properties. After the death of Bakshi parties had succeeded to his estate in equal shares i.e. 1/5th share each. No partition had taken place between the parties, but as the defendants started threatening to alienate the suit property, thus, the suit.

Defendants in defence, inter alia, pleaded that the suit for partial partition filed by the plaintiffs was not maintainable. It was averred that the parties were not joint owners in possession of the suit properties. However, it was admitted that Bakshi was the owner of the suit properties. Further, it was pleaded that plaintiffs had left out two properties i.e. house in possession of plaintiff No. 1-Surjit Singh and the property of Gurudwara Sahib and other property i.e. house in possession of plaintiff No. 2 Malkiat Singh. As such, suit of the plaintiffs was bad for partial partition. It was maintained that the properties mentioned at Sr. No. A and B in the plaint were in exclusive possession of Sh. Ram Pal defendant No. 2 as owner. Property shown at Sr. No. 3 was stated to be in possession of Surjit Singh plaintiff having been given to him by Bakshi. Property shown at Sr. No. D was under exclusive possession of defendant No. 1. Thus, defendant No. 1,3 and 4 prayed for dismissal of the suit.

On an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that concededly, the suit property was originally owned and possessed by Bakshi, who admittedly was the predecessor-in-interest of the parties. There was no dispute that the plaintiffs and defendants No. 1 and 2 were the sons, defendant No. 3 was the daughter and defendant No. 4 was the widow of the deceased (Bakshi). It was also observed that Bakshi died intestate. Therefore, the parties to the lis being class-1 heirs inherited his estate in equal shares. Thus, the plaintiffs had 1/6th share each in the property in dispute and so were the defendants. The plea of the defendants that the suit for partial partition of the property was not maintainable, was also rejected as the defendants failed to prove in any manner, least by adducing any cogent or convincing evidence that the properties detailed in para No. 3 of the written statement were joint between the parties. Further, it was observed by the trial Court that in case the said two properties were joint, the defendants would have laid a claim thereto by filing a counter claim. Further, in the absence of any specific pleading or evidence, the said properties as detailed in para No. 3 of the written statement could not be held to be joint between the parties. Thus, the plaintiffs were held to have 1/6th share each in the suit properties and so were the defendants. That being so, the plaintiffs were found entitled to partition by way of separate possession. Resultantly, the suit filed by the plaintiffs was decreed by the learned trial Court vide judgment and decree dated 07.05.2010.

Being dissatisfied with the said decree, the defendants preferred an appeal. Learned First Appellate Court reviewed the matter in issue, evidence on record in its entirety and on an analysis thereof, found itself in concurrence with the view drawn by the learned trial Court and the findings recorded in support thereof. It was observed that the only point raised by counsel for the appellants was regarding their objection qua partial partition. However, the appellants failed to prove that their two properties were earlier owned and possessed by Bakshi or were jointly owned by the parties. On the contrary, the specific case set out by the respondents was that houses in their possession were their self-acquired properties. Therefore, the appellants could not substantiate on record as to how the suit instituted by the plaintiffs was bad for partial partition. Resultantly, learned First Appellate Court vide judgment and decree dated 13.03.2012 dismissed the appeal.

I have heard learned counsel for the appellants and examined the judgments rendered by both the Courts below. Learned counsel for the appellants could not show or point out as to how the findings recorded by both the courts below were perverse or the conclusions arrived at, were contrary to the record. Nothing could be shown as to how the properties, which were in possession of Surjit Singh and Malkiat Singh (plaintiffs) and purported to be their self acquired properties, were either jointly owned by the parties or originally owned by their father Bakshi. In the absence of any such evidence, there hardly exists any ground, least plausible in law, to interfere with the decrees being assailed in the present appeal.

In the wake of the position set out above and the conclusions that have concurrently been arrived at by both the Courts below, no question of law, much less any substantial question of law, arises for consideration in the present appeal. The same being devoid of merit is accordingly dismissed.