Tarjit Singh and Another vs Sukhjit Singh Walia and Others

Vijender Singh Malik, J.—This regular second appeal is brought by the plaintiffs, who have lost their suit as well as the appeal vide judgments and decrees dated 8.10.2009 and 25.9.2012 passed by learned Additional Civil Judge (Senior Division), Amritsar and learned Additional District Judge, Amritsar, respectively. The plaintiffs-appellants filed a suit for partition and separate possession of their share in two residential properties detailed in the judgment of learned trial court. He claimed mat Hari Singh father of the plaintiffs and defendants No. 1 to 6 was owner of the property in dispute. He died on 20.10.1980 and mother of the plaintiffs and defendants No. 1 to 6, named, Satwant Kaur died about 7 years ago. The residential properties in question have been joint Hindu family property and co-parcenary property of the plaintiffs and defendants No. 1 and 2, Defendant No. 5 was enjoying usufruct of the said building and, therefore, the plaintiffs have desired to get their share separated in the said property. The plaintiffs have claimed to have 1/2 share in the property while the other 1/2 share is of defendants No. 1 and 2. Defendant No. 7 is alleged to have purchased some portion of the property from defendant No. 1 and, consequently, he has been arrayed as a party to the suit. Defendants No. 8 to 11 claimed themselves to be in possession of building No. 579, Old Gali Lala Roop Chand, Bazar Narsinghdass, Majith Mandi, Amritsar as tenants and to avoid all future complications, they are also impleaded as parties. Defendants No. 3 to 6 are claimed to be daughters of late Hari Singh and to avoid future complications, they have also been impleaded.

The suit has been resisted by defendants No. 2 and 5 only. Defendants No. 2 and 5 have denied every allegation of the plaintiffs. They have claimed the plaintiffs to be estopped from filing the present suit and have taken other pleas of res judicata and limitation also. The ownership of the plaintiffs over the suit property or the share thereof is also denied.

On the pleading of the parties, the following issues were settled by learned trial court:--

(1) Whether the suit property is joint family property and plaintiff is entitled for partition of the suit property? OPP

(2) Whether defendant No. 5 received rent from defendants No. 3 to 11, he is liable to render accounts? POPP

(3) Whether the suit is properly maintainable? OPP

(4) Whether the plaintiff is in possession of the suit property? OPR

(5) Whether the part of the suit property has been purchased by defendant No. 7 vide sale deed and sale is false and fabricated? OPD No. 5

(6) Whether the suit property has not been valued for the purpose of court fee and jurisdiction? OPD

(7) Whether the plaintiffs have no locus standi to file the present suit? OPD

(8) Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD

(9) Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD

(10) Whether the suit is hit by the principles of res judicata? OPD

(11) Whether the suit is time barred? OPD

(12) Relief.

The parties led their respective evidence. Hearing learned counsel for the parties, learned Additional Civil Judge (Senior Division), Amritsar vide judgment and decree dated 8.10.2009 found the plaintiffs to have failed to establish their claim and the suit has been dismissed. The appeal preferred by the plaintiffs also failed before learned Additional District Judge, Amritsar.

Learned counsel for the appellants has submitted that the plaintiffs have been nonsuited by the courts below on the ground of certain admissions appearing in the cross-examination. He has drawn attention of the court to the observations of the trial court in para No. 24 of the judgment where plaintiff No. 2, Madanjit Singh [PW-1] appearing in his own cause was found to have admitted that he had received his share from the properties of his father during his life time. On this admission, he was found not entitled to partition of the property, as prayed for.

Learned counsel for the appellants has further submitted that the statement of the appellant has been misconstrued. According to him, had there been any admission on the part of the plaintiff to this effect, the cross-examination could not have been got deferred and conducted again on the next date of hearing. He has submitted that as the cross-examination was deferred after the alleged admissions and was conducted again, the statement does not imply any admission and was not taken even by the defendants to imply any admission.

The admissions are quite unambiguous. They are in so many words. For the only reason that cross-examination after those admissions was deferred and was resumed later on, it cannot be believed that these admissions have been incorrectly recorded. The defendants may have to cross-examine the plaintiffs-appellants on some other aspect. They are the brothers in relationship and for the only fact that the cross examination was deferred, it cannot be said that these admissions are not correct and they have been wrongly taken by the courts below to hold that the plaintiffs have already got their share in the property of their father separated in his lift time. In these circumstances, I find no merit in the submissions made by learned counsel for the appellants. Moreover, no questions of taw much less substantial questions of law arise in this appeal. Consequently, the appeal has no merit and is dismissed in limine.