Allowed

Joginder Singh v. Sumitra and Ors.

Himachal Pradesh HC10 Apr 2023RSA/45/2023

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for partition of Abadi Deh land, the Court held that the lack of evidence showing the extent of shares or identification of vacant land precluded interference with lower courts' dismissal. The Court affirmed the lower judgments and reserved liberty to file a fresh suit if sufficient vacant land is later identified.

What did the court decide?

Fresh suit reserved for partition if sufficient vacant land is subsequently proven.

Joginder Singh Vs Sumitra and Ors. — Partition | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No.45 of 2023 Decided on: 10^th April, 2023 ------------------------------------------------------------------------------------- Joginder Singh …..Appellant Versus Sumitra and others .....Respondents ------------------------------------------------------------------------------------Coram

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Ms. Justice Jyotsna Rewal Dua

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Whether approved for reporting?¹

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For the Appellant: Mr. G.R. Palsra, Advocate.

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For the Respondents: Mr. Romesh Verma, Senior Advocate with Mr. Hitesh Thakur, Advocate.

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-----------------------------------------------------------------------------------Jyotsna Rewal Dua, Judge

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Aggrieved against the concurrent judgments and

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decrees passed by the learned Courts below, dismissing his suit, the plaintiff has invoked Section 100 of the Code of

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Civil Procedure.

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2. Facts:-

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2(i). Appellant was the plaintiff before the learned

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Trial Court. Suit for declaration under Section 34 of the Specific Relief Act, 1963 was instituted by him seeking partition of the suit land between him and the defendants

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to the extent of half share each firstly by passing the

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preliminary decree.

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1 Whether reporters of print and electronic media may be allowed to see the order?

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The case of the plaintiff was that the suit land was co-owned and co-possessed by him and the defendants to the extent of half share each. The suit land in the revenue record was depicted as “Abadi Deh”. The suit land had been coming in possession of ancestors of parties and after their death, it had devolved upon the plaintiff and the defendants.

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The plaintiff had, inter alia, pleaded that he and the defendants had raised some constructions on the suit land. In paragraph 2 of the plaint (produced by learned counsel for the appellant), reference was made to photograph showing the location and position of the construction raised by the parties. In this very paragraph, the plaintiff further goes on to plead that some constructions raised by the defendants over the suit property could not be photographed by the plaintiff and therefore, identity of such constructions will be established after the passing of preliminary decree. It was also pleaded that relationship between the parties became strained, therefore, need had arisen for the plaintiff to pray for partition of the suit land.

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2(ii). The suit was contested by the defendants. They claimed themselves to be in exclusive possession over the

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suit land. The defendants denied that the suit land was owned and possessed to the extent of half share by the plaintiff.

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2(iii). Learned Trial Court allowed an application moved by the plaintiff for appointment of Local Commissioner. The Local Commissioner submitted his report dated 20.05.2016. After considering the evidence adduced by the parties, their pleadings and the report of Local Commissioner, learned Trial Court vide its judgment and decree dated 28.07.2021, held that there was nothing on record to show the extent of the share of the parties in the suit land as claimed by the plaintiff. That in the Jamabandi for the year 2006-07 (Ext. PW-1/B), the suit land was recorded under the ownership and possession of “Abadi Deh”. All the villagers including the parties to the lis are joint owners of the Abadi Deh having proprietary interest therein. Therefore, the version of the plaintiff that the suit land was owned to the extent of half share each by him and the defendants cannot be accepted to be correct. Learned Trial Court also returned the factual finding that no document had been placed on record to show the extent and manner to and in which the co-sharers or the parties to the suit made use thereof and proportion in which the

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expenditure, if any, incurred thereon and the profits, if any, derived therefrom are to be borne by and divided by those persons or any of them. Accordingly, the civil suit instituted by the appellant was dismissed.

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2(iv). The first appeal preferred by the plaintiff was also dismissed on 16.12.2022. Learned First Appellate Court also returned the factual findings that:- the parties were not clear about the legal position; No specific pleading had been made regarding the land, which was either lying vacant or constructed upon; Whether there is any divisible portion left or not in the suit land, nature of which was abadi deh, will have to be decided on the basis of proper pleadings and evidence; Such pleadings and evidence should be able to claim partition having permitted one of the co-sharer to spend money and raised construction on a portion or the entire suit land, which was joint. Learned First Appellate Court accordingly held that no such record was available to show the extent and manner in which the co-sharers or the parties to the suit made use of the suit land and the proportion in which the expenditure was incurred by them.

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2(v). Aggrieved against the concurrent dismissal of

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his civil suit by both the learned Courts below, the appellant has instituted the instant regular second appeal.

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3. I have heard learned counsel for the appellant (plaintiff), learned Senior Counsel for the respondents (defendants) and gone through the case file.

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4. In my considered view, no case for interference with the impugned judgments and decrees passed by both the learned Courts below is made out. This is for the following reasons:-

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4(i). It is not in dispute that the nature of the suit land is “Abadi Deh”. It is also not in dispute that the documents on record do not show the extent of shares enjoyed by the plaintiff or the defendants in the suit land. Learned counsel for the appellant has admitted that the

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appellant’s/plaintiff’s claim of his and defendants being co-owners to the extent of ½ share each is not borne out from the record.

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4(ii). It is also not in dispute that the constructions alleged to have been raised by the plaintiff and defendants have not been identified. The vacant land is also not identifiable. I have perused the report of the Local Commissioner produced during hearing of the case by

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learned counsel for the appellant. The report does not advance the case of the appellant. No doubt, in Latest HLJ

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2011 (HP) 721 (Ganga Devi and another V/S Ashok

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Kumar and ors.) , it has been held that inter se the cosharers, apart from vacant land, built up structure falling within the “Abadi Deh” land can also be subjected to partition. However, in the same judgment, it was held that when there are no clear-cut pleadings or evidence in respect of the constructions carried out or the availability of vacant land or the divisible portion thereof, then, the claim of partition cannot be granted. It would be apt to notice following paragraphs from the aforesaid judgment:-

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“9. The question in this case is slightly different. Taking the aforesaid example itself. The father did not raise any construction and the joint land is vacant. Supposing one of the legal heirs does not settle in the village and goes somewhere else and the sole legal heir remaining in the village and constructs his residence on the entire 100 sq. meters without any objection from the other legal heir. Then in such an eventuality the successor of the other legal heirs, in my opinion, would not be able to claim partition having permitted one of the legal heirs to spend money and raise construction on a portion or the entire suit land, which was joint.

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10. Having held so, the question which arises is what is the effect of the aforesaid proposition of law in this case. Unfortunately, there are no clear cut pleadings or evidence in this regard. As held by the learned lower Appellate Court it is not even clear as to how much of the suit land is still lying vacant. At best, the plaintiffs can get relief only in respect of the vacant suit land and not in respect of that portion of the Abadi land over which construction has already been raised by the defendants.

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11. It is obvious that the parties were not clear about the legal position and no specific pleadings were made with regard to the land which was lying vacant or constructed upon. There is, however, no manner of doubt that the land was originally joint. The question whether there is any divisible portion left or not will have to be decided on the basis of proper pleadings and evidence.

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12. Therefore, in view of the above discussion, I find no merit in the appeals. However, while the appeals are being dismissed liberty is reserved to the plaintiffs to file a fresh suit and in case they can show that there is sufficient vacant land which can be partitioned then they can file a fresh suit for partition of the same in accordance with the principles laid down here-inabove.”

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4(iii). In the instant case, both the learned Courts below have returned factual findings that the shares of the parties in the suit land are not forthcoming from the revenue record. Further that extent of constructions raised over the suit land, identity thereof, extent of vacant land and identity thereof have not forth come from the record. The manner in which the co-sharers or the parties to the suit made use of the suit land in proportion to which the expenditure, if any, has been incurred thereon, has also not forth come from the record. Thus, it is obvious that the parties were not clear about the legal position. No specific pleadings were taken in respect of the land, which was lying vacant or constructed thereupon. Therefore, I do not find any error in the conclusions recorded by both the learned Courts below that whether there is any divisible portion left

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or not will have to be decided on the basis of proper

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pleadings and evidence, which were lacking in the instant case.

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4(iv). No other point was urged.

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5. Accordingly, I find no merit in the instant appeal

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and the same is dismissed. The judgments and decrees passed by both the learned Courts below, dismissing the civil suit filed by the appellant/plaintiff, are affirmed. Liberty is, however, reserved to the appellant/plaintiff to institute a fresh suit in accordance with law. In case such a recourse is adopted, then, all rights and contentions available to the parties including legal objections, if any, available to the respondents/defendants are left open. Pending miscellaneous application(s), if any, also stand disposed of.

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Jyotsna Rewal Dua April 10, 2023 Judge Mukesh

Joginder Singh v. Sumitra and Ors.

Case brief

What is this about?

What did the court decide?

Joginder Singh v. Sumitra and Ors.

Case brief

What is this about?

What did the court decide?

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