In this second appeal, appellants challenged the dismissal of their suit for partition of joint family land in abadi deh. The court held that since defendants were in possession of less land than their share and the plaintiffs retained possession per the agreement, no partition was warranted, dismissing the appeal.
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R.S.A.No.1000 of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A.No.1000 of 2008
Date of Decision : 06.07.2009
Tej Ram and Others
...Appellants
Versus
Shiv Ram and others
...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. Pritam Saini, Advocate, for the appellants.
HEMANT GUPTA, J.
The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby their suit for partition of plot of land falling within abadi deh of Village Jhanda was dismissed. The plaintiffs have pleaded that the parties are joint owner to the extent of half share of the property. An agreement was executed on 30.6.1998 to adjust their rights in the property. The parties have constructed their pucca residential houses in terms of said agreement. But the property in question is still joint and the same has not been partitioned by metes and bounds. The defendants are in possession of more land than their share, therefore, the plaintiffs have sought partition of the abadi deh land so as to seek possession of their half share.
Both the Courts below dismissed the suit holding that mutual adjustment has already taken place between the parties, when agreement Ex.P-2 was executed and that since revenue record is not maintained for the property within abadi deh, therefore, the parties might have not reported the partition to the Revenue Authorities. It was also found that there is no plea that how much excess area is in possession of the
R.S.A.No.1000 of 2008
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defendants.
Learned counsel for the appellants has produced copy of the agreement dated 30.6.1998 as also the pleadings of the parties before the Civil Court. Clause-I of the agreement deals with the plot of land in abadi deh i.e. subject matter of the present suit. As per the said clause, the parties are to retain possession of abadi land. Clause-2 is in respect of khasra No.102/2 measuring 13 marlas. It provides that passage was to be given from abadi land and a sale deed of half share of 13 marlas was to be executed in favour of Swaran Singh. It has come on record that the defendants has executed sale deed in respect of half share of 13 marlas on 28.7.1998.
It is not the case of the appellants that passage from the abadi land has not been given. The grievance of the appellants is that the appellants are in possession of less share than what is in possession of the defendants. But as per Clause I of the agreement, the possession of abadi land was to be protected. Therefore, the appellants cannot claim possession of more share than what was already in their possession. It is again not the case of the appellants that they have been dispossessed from any portion, which was in their possession on 30.6.1998.
In view of the above, it is apparent that both the Courts below have recorded concurrent findings of fact, based on appreciation of evidence. I do not find that any substantial question of law arises for consideration by this Court.
Dismissed.
(HEMANT GUPTA) JUDGE
06.07.2009 Vimal
1 issue framed by the court
Whether the second appeal succeeded given the concurrent findings of fact regarding mutual adjustment and the agreement clauses.
Tej Ram and Others
Shiv Ram and others
Hemant Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
