The High Court dismissed a partition appeal filed by a defendant-appellant against a lower appellate court decree due to non-prosecution, noting the appellant died during pendency and legal representatives were unserved.
The appeal was dismissed for non-prosecution.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA No.1196 of 1981 (O&M) Date of decision: 5.10.2009
Karnail Singh
-----Appellant
Vs.
Kartar Singh and others
----Respondents
CORAM:HON'BLE MR JUSTICE ADARSH KUMAR GOEL
Present:None for the appellants. None for the respondents.
Adarsh Kumar Goel ,J.
against decree in suit for possession filed by the respondent-plaintiffs.
RSA No.1196 of 1981 (O&M)
2
trial court dismissed the suit upholding the plea of the defendant-appellant.
“In para 4 of the plaint, it was specifically mentioned that the defendant purchased 1/4th share out of the property from Ralli and mutation no.1659 was sanctioned in his favour. The allegations made in para No.4 of the plaint were admitted as correct by the respondent. I, agree with the counsel for the appellants that, if respondent had exclusive share in the land bearing Khasra No.344, the respondent would not have permitted Harnam Kaur to sell the land in favour of the plaintiffs-appellants and further himself would not have purchased the share of Ralli. This shows, the jointness of the suit was admitted even by the defendant-respondent. Even otherwise, there was no reason to discard the documentary evidence. In the revenue paper, the appellants had been recorded co-sharers in the land. Simply, because, the defendantsrespondent had constructed a house over a portion of the land, would not permit me to reach the conclusion that the respondent was the exclusive owner of the suit land. The
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3
appellants had been recorded as co sharers in the land. They had purchased land from Harnam Kaur as well. In such circumstances, the defendant-respondent could not acquire title by adverse possession. It is not disputed, that, the appellants had been given one house in the life time of Bishan Singh and the other house was retained by Bishan Singh. The question of partition of the said house, as such could not be arise and the suit could not be held to be bad for partial partition. The finding of the lower court on issues No.2, 4 for the reasons discussed above, is liable to be set aside. Consequently, I set aside the findings of the lower court on issues No.2 and 4. As a result of my findings above, I accept the appeal, set aside the judgment and decree of the lower court and pass a preliminary decree for possession by partition of the suit property comprising Khewat No.60, Khatuni No.125, Khasra No.344 situated at village Katran, Tehsil Samrala in favour of the appellants and against the respondent.”
During pendency of this appeal, the appellant died and his legal representatives were sought to be brought on record
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4
by the respondents. Notice was issued to them but they remained unserved.
exclusive owner is, prima-facie, a finding of fact.
October 5, 2009 (Adarsh Kumar Goel) ‘gs’ Judge
2 issues framed by the court
Whether the appeal can be decided when the appellant or legal representatives fail to pursue it despite notice.
Whether findings of fact regarding co-sharer status are revisitable on lack of prosecution.
Karnail Singh
Kartar Singh
Adarsh Kumar Goel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
