Paras Ram Vs Prem Chand and Others

1 ( 2026:HHC:10487 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. : 199 of 2023 Reserved on 25.03.2026 Decided on : 06.04.2026 Paras Ram ….Appellant. Versus Prem Chand & another ...Respondents

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Coram:

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The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?¹

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For the appellant Mr. Dinesh Kumar Sharma For the respondents Mr. Imran Khan, Advocate, for respondent No.1.

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Mr. Ashok Kumar Sharma, Advocate, for respondent No.2

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Romesh Verma, Judge

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The present Regular Second Appeal arises out of the judgment and decree as passed by the learned District Judge, Mandi,H.P. dated 31.12.2022, whereby the appeal filed by the present appellant was dismissed and judgment and decree as passed by the learned Civil Judge (Jr. Division) Barsar, District Hamirpur, HP, dated 20.01.2018 was affirmed, whereby the suit filed by the plaintiff/respondent No.1 was decreed and a preliminary decree for partition of the suit land was passed in favour of the plaintiff.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2 ( 2026:HHC:10487 )

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Brief facts of the case are that the plaintiffrespondent filed a suit for partition against the defendants with respect to the land comprised in Khewat No. 39, Khatauni No. 50, Khasra Nos 1070, measuring 0-05-02 bighas, situated in Muhal Bhyarta/239, Illaqua Balh, Tehsil Sadar, District Mandi, H.P. as per jamabandi for the year 2006-2007. (hereinafter referred to as “the suit land”).

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It was averred in the plaint that the suit land is a built up site and is not partitioned as yet. It is averred that due to the joint ownership, the plaintiff is not in a position to enjoy and develop his share. It is further averred that the defendants were requested various time to get the suit land partitioned but they have paid no heed at the request of the plaintiff. Therefore, the suit was filed with a prayer that suit may be decreed and the preliminary decree be passed in favour of the plaintiff and against the defendants and that the 1/3rd share of the plaintiff be partitioned by metes and bounds.

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The defendants were duly served in the Civil Suit and they filed the written statement by taking various

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preliminary objections with respect to cause of action, maintainability, under valuation, jurisdiction etc. It is averred in the written statement that the entry showing the plaintiff as joint owner with the defendants and alongwith one Thakur Dass is wrong and illegal. It is further averred that the previous number of the suit land was 965 and during the consolidation operation, it has been changed to khasra No. 1070 and before the settlement, the previous Khasra No. 965 was 97 min and before consolidation the previous khasra numbers of Khasra No. 97 min was 101,105,106,107. That all the averments as made in the plaint were refuted and the defendants sought the dismissal of the plaint. In alternate, the defendants raised the plea that they are in continuous, uninterrupted and hostile possession to the knowledge of the true owner, as such, the defendants have become absolute owners in possession of the suit land by way of adverse possession. The defendants prayed for the dismissal of the plaint.

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Defendant No.1 was duly served and he filed written statement to the Civil Suit. Defendant No.2 was served and he prayed time for filing of the written

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statement. However, before filing the written statement, on behalf of defendant No.2 he alongwith defendant No.1 were proceeded against ex-parte vide order dated 20.11.2017.

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Learned Civil Judge(Junior Division), Barsar, District Hamirpur, vide its judgment and decree by passing ex-parte judgment against the defendant/present appellant decreed the suit filed by the plaintiff by passing preliminary decree for partition of the suit land comprised in Khewat No. 39,Khatauni No. 50,Khasra Nos 1070, measuring 0-0502 bighas,situated in Muhal Bhyarta/239, Illaqua Balh, Tehsil Sadar,District Mandi. It was ordered that the plaintiff is entitled for 2/6th share in the suit land.

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Feeling dissatisfied by the judgment and decree as passed by the learned Civil Judge(Junior Division), Barsar District Hamirpur dated 20.01.2018, defendant No.1 preferred an appeal in the Court of learned District Judge, Mandi on 26.12.2022. The defendant No.2 Thakur Dass was arrayed as proforma respondent in the said appeal. The First Appellate Court vide its judgment and decree dated 31.12.2022, dismissed the appeal as preferred by defendant No.1/appellant.

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5 ( 2026:HHC:10487 )

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Still feeling aggrieved, the defendant No.1/appellant has approached this Court by filing the present Regular Second Appeal.

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It is contended by Mr. Dinesh Kumar Sharma, learned counsel for the appellant that the judgment and decree by passing a preliminary decree for partition of the suit land in favour of the plaintiff and against the defendants is erroneous in the eyes of law. He has further submitted that the suit as preferred by the present respondent was not maintainable in view of the findings as returned by the competent Court of law in the previous Civil Suit, which was filed by the plaintiff.

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On the other hand, Mr. Imran Khan, learned counsel for respondent No.1 has defended the judgments and decrees as passed by the Courts below. He has submitted that in order to drag the plaintiff into uncalledfor litigation, the defendants earlier allowed themselves to be proceeded against ex parte and, thereafter when the judgment was passed against them, they assailed the said judgment before the First Appellate Court and now before this Court. He has submitted that there are concurrent findings of facts which do not call for any interference by

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this Court. He has further submitted that the findings as returned by the Courts below are factual, therefore, no question of law much less the substantial questions of law arises in the present appeal.

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I have heard the learned counsel for both the parties and have gone through the record of the case file carefully.

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With the consent of the parties, the appeal is finally heard at the admission stage.

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The case of the plaintiff before the learned trial Court was that the suit land is jointly owned and possessed by the parties. There is a katcha dwelling house of the parties existing over a piece of the land. The plaintiff is having 1/3rd share in the land and house referred to above, and due to joint ownership, the plaintiff is not in a position to enjoy and develop his share. Therefore, the present suit has been filed.

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In order to substantiate his claim, the plaintiff has placed on record his affidavit Ext.PW1/A, wherein he has reiterated the contents as made in the plaint. He has deposed in his affidavit that the plaintiff is having 1/3rd share in the land and house situated over the suit land,

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7 ( 2026:HHC:10487 )

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therefore, he is entitled for the partition of the same and the suit may be decreed. Since the defendants were proceeded against ex-parte, therefore, no cross examination could be got done. The plaintiff has placed on record Ext.PW1/B, the copy of jamabandi for the year 20062007, which shows that plaintiff is one of the co-owners alongwith the defendants.

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The copy of the revenue record as placed on record shows that the plaintiff is one of the co-owners of the suit property, therefore, the suit as instituted for partition was rightly decreed by the Courts below.

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It has come on record that though the defendants were duly served and even defendant No.1 had filed the written statement and defendant No.2 had sought time to do the same, however, before doing the same, the defendants were proceeded against ex-parte on 20.11.2017. Neither any application for setting aside the said order was filed by the defendants nor any steps were taken by the defendants for setting aside the said order and ultimately ex-parte judgment was passed against them. The plaintiff has been able to establish his case by leading oral as well as documentary evidence placed on record that the suit

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property is joint amongst the parties and the same is substantiated from the perusal of Ext.PW1/B, which shows that the plaintiff is one of the co-owners of the suit property. Therefore, the judgment passed by the learned trial Court as affirmed by the District Judge does not suffer from any infirmity.

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It is contended by the learned counsel for the appellant that the present plaintiff/respondent had instituted a suit for permanent prohibitory injunction and in alternative for mandatory injunction in the Court of learned Civil Judge(Junior Division), Court No.3, Mandi on 09.01.2006. The said case titled as Prem Chand vs. Paras Ram was ordered to be dismissed by the learned Civil Judge (Junior Division) Court No.3, Mandi on 08.05.2009. It is contended by the learned counsel for the plaintiff that since the suit for injunction as filed by the present plaintiff was dismissed and further the appeal as preferred by the present plaintiff was also dismissed, therefore, the present suit for partition is not maintainable.

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The perusal of the judgment passed in the previous litigation shows that the said suit was simplicitor suit for injunction and title of the parties were not

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adjudicated by the Court in those proceedings. The plaintiff was found to be out of possession, therefore, the relief of injunction was declined to the present plaintiff. The First Appellate Court has rightly come to the conclusion that incidental findings as recorded by the trial Court and the First Appellate Court regarding the title will not constitute resjudicata in the suit for partition. In the present case, plaintiff has been able to establish his title by placing on record the copy of jamabandi Ext.PW1/B for the year 20062007, which shows that the plaintiff is one of the co-owners of the suit property. Though in the written statement, stand was taken by the defendant that the said entries are incorrect, however, neither such averments have been proved nor any documentary evidence in order to rebut the said entry in the jamabandi has been placed on record.

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The only conclusion drawn from the oral as well as documentary evidence placed on record is that being one of the co-owners, the plaintiff is entitled for partition of the suit property.

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The record of the case shows that the partition proceedings were initiated by the present plaintiff way back

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in the year 2011 and despite passing of more than 15 years, the partition has not been finalized.

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The trial Court passed the preliminary decree on 20.01.2018 and thereafter the appeal which was preferred by the defendant/appellant was ordered to be dismissed on 31.12.2022. The Courts below have rightly appreciated and considered the issue involved in the present case and the learned trial Court has rightly passed the preliminary decree for partition of the suit land which findings have been rightly affirmed by the First Appellate Court.

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No other point was urged or raised by the learned counsel for the appellant.

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No question of law much less the substantial question of law arises in the present appeal, therefore, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly.

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Pending application(s), if any, also stands disposed of.

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(Romesh Verma), Judge

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6^th April,2026 (veena)

Paras Ram v. Prem Chand and Others

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Paras Ram v. Prem Chand and Others

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