Vijay Kumar vs Karam Chand Sharma and Others

L.N. Mittal, J.

CM No. 11727.C of 2010

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

RSA No. 3932 of 2010

Defendant No. 1 Vijay Kumar having failed in both the courts below has approached this Court by way of instant second appeal.

Suit was filed by Respondent Nos. 1 to 4/Plaintiffs against Defendant No. 1-Appellant and against Respondents No. 5 to 7 as proforma Defendants No. 2 to 4. Appellant and Respondent No. 1 are real brothers whereas Respondents No. 2 to 7 are heirs of Amar Chand third brother of Appellant and Respondent No. 1. Plaintiffs alleged that all the three brothers purchased the suit land in equal shares vide various sale deeds. The property was orally partitioned between the parties and later on writings dated 2.12.1988 and 25.4.1993 were also executed. The parties were in possession as per oral partition but Defendant No. 1-Appellant tried to dispossess the Plaintiffs from their portions. Thereupon, Karam Chand Plaintiff No. 1 filed civil suit No. 286 of 19.6.1992 for injunction against Vijay Kumar Defendant No. 1-Appellant whereas Vijay Kumar filed suit against Karam Chand, Rani Sharma etc. bearing suit No. 482 of 17.5.1993. Vijay Kumar claimed exclusive ownership of the suit property. Both suits were decided by the trial court vide common judgment dated 9.12.2002 and the suit property was held to be joint of all the three brothers. Writing dated dated 2.12.1988 was held to be genuine but partition was not accepted being unregistered document. The suit filed by Karam Chand Plaintiff No. 1/Respondent No. 1 was dismissed whereas Defendant No. 1/Appellant''s suit was decreed holding the property to be joint of all the three brothers. Claim of exclusive ownership of Defendant No. 1/Appellant over the suit property was negatived. In the instant suit, Plaintiffs sought partition of the suit land claiming 1/3rd share each for Plaintiff No. 1 and Defendant No. 1 and remaining 1/3rd share for heirs of Amar Chand since deceased.

Only Defendant No. 1 contested the suit. He denied the allegations of the Plaintiffs and pleaded that the suit property was given to him by his grandfather 27 years ago and since then he is exclusive owner in possession of the suit property. Defendant No. 1 also claimed to have become owner of the suit property by way of adverse possession. He also set up mutation No. 7885 in support of his claim. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Sangrur vide judgment and decree dated 4.8.2008 decreed the Plaintiffs'' suit and passed preliminary decree for partition. First appeal preferred by Defendant No. 1 stands dismissed by learned Additional District Judge, Sangrur vide judgment and decree dated 30.4.2010. Feeling aggrieved, Defendant No. 1 has preferred the instant second appeal.

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

Learned Counsel for the Appellant vehemently contended that there was mutual partition among the three brothers regarding which mutation No. 7885 was sanctioned and thereby Amar Chand got 9 marlas land out of the suit land and the other two brothers i.e. Appellant and Respondent No. 1 got the remaining land in equal shares. The contention although apparently attractive cannot be accepted. No plea of private partition was even raised by Defendant No. 1-Appellant in his written statement. On the contrary his claim was based on two pleas i.e. that his grandfather had given suit land to him 27 years ago and that he had become owner in possession of the suit property by adverse possession. However, both these pleas have not been established. Suit land was jointly purchased by all the three brothers as has been proved by sale deeds produced in evidence. The contention of oral partition would also lead to the conclusion that the suit property was jointly owned by all the three brothers. Consequently, grandfather of Defendant No. 1 - Appellant had no right or authority to give the suit land to Defendant No. 1 exclusively when the grandfather himself had no right, title or interest in the suit property. Even otherwise there was no reason for giving suit land exclusively to Defendant No. 1 when it was jointly purchased by all the three brothers.

The plea of Defendant No. 1 that he has become owner of the suit land by adverse possession is also not established because all the three brothers were co-sharers and ouster of the remaining two brothers has not been proved or pleaded by Defendant No. 1. Even otherwise exclusive possession of Defendant No. 1 over the suit property is not proved. The contention of alleged oral partition raised by Defendant No. 1 would also negative the plea that he had become owner of the suit property by adverse possession.

As regards plea of oral partition Karam Chand Plaintiff No. 1 had also filed suit No. 286 of 1992. The said suit as well as another suit No. 482 of 1993 instituted by Defendant No. 1 - Appellant was decided vide common judgment dated 9.12.2002 which has attained finality. In that judgment, parties were held to be joint owners of the suit land and plea of oral partition was negatived. In view of said finding which has attained finality, the plea of oral partition now sought to be raised by learned Counsel for the Appellant cannot be accepted. Admission made by Plaintiff No. 1 in the written statement in previous litigation as referred to by counsel for the Appellant, is therefore, of no avail in view of finding in judgment dated 9.12.2002. In fact, Plaintiff No. 1 had raised the said plea of oral partition in his suit No. 286 of 1992 but Defendant No. 1 - Appellant himself did not accept the same and rather claimed the entire suit property exclusively. Consequently, the plea of oral partition now advanced by learned Counsel for the Appellant cannot be accepted particularly so in view of judgment dated 9.12.2002 in the previous litigation which has attained finality.

For the reasons aforesaid, I find no merit in the instant second appeal. There is concurrent finding by both the courts below against Defendant No. 1 - Appellant. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine.