Dismissed

Gurcharan Singh v. Gurdev Singh and Ors.

Punjab & Haryana HC6 Aug 2009RSA/2875/2009

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for declaration and permanent injunction concerning an alleged oral partition of land, the High Court dismissed the appeal in limine, holding that the lower courts' findings were not perverse and no substantial question of law arose.

What did the court decide?

Second appeal dismissed in limine without modem determination of substantial questions of law.

Gurcharan Singh Vs Gurdev Singh and Ors. — Property and Title | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Regular Second Appeal No. 2875 of 2009 Date of Decision : August 06, 2009

Gurcharan Singh

....Appellant

Versus

Gurdev Singh and others

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.....Respondents

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CORAM : HON’BLE MR. JUSTICE T.P.S. MANN

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Present : Mr. Arvind Kashyap, Advocate

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T.P.S. MANN, J.

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Suit filed by the plaintiff-appellant for declaration and permanent injunction was dismissed by Additional Civil Judge (Senior Division), Amloh on 30.8.2007. The plaintiff then filed the first appeal, which met the same fate at the hands of Additional District Judge, Fast Track Court, Fatehgarh Sahib, who dismissed it on 29.5.2009. He is now before this Court by way of second appeal.

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According to the plaintiff-appellant, the parties to the suit were joint owners of the suit land in the revenue record. An application was filed by Harnek Singh-defendant for partition of the suit land, wherein the plaintiff appeared and filed his reply by taking objection about the land having already been partitioned by way of oral partition and on the basis of which the possession had been transferred and subsequent thereto he had constructed his house in the land belonging to

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R.S.A. No. 2875 of 2009 -2-

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his share, besides installing an electric tubewell. The parties also mortgaged specific Khasra numbers to the banks for obtaining loans and, thus, admitting the partition to be true. However, the proceedings conducted by Assistant Collector 1^st Grade, Amloh and Naksha 'A rra ' and ' E ree' prepared in these proceedings were illegal, null and void, without jurisdiction, non est and against the principles of natural justice and procedure. Accordingly, he sought the relief of declaration, besides asking for permanent injunction so as to restrain the defendants from dispossessing him or taking possession of any portion of suit land in pursuance of the order dated 10.4.2003 passed by Assistant Collector 1^st Grade, Amloh.

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The defendants opposed the suit by filing their written statement,wherein, apart from raising preliminary objections, stated that though the plaintiff while raising objection to the partition proceedings stated about the previous oral partition, yet it was without any basis as no oral partition was made or effected. Even no mention of the said fact was made in the revenue record. Rather the revenue record described the suit property as joint, which has now been partitioned and only Sanad Takzim was to be issued. The partition proceedings had been finalised by the revenue authorities having jurisdiction to do so. The objections of previous oral partition were rejected and appeals were also dismissed. Mere raising of construction in the suit land by the plaintiff or installing a tubewell did not mean that the properties had been partitioned. The

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R.S.A. No. 2875 of 2009 -3-

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parties obtained loans from the banks by representing that they were cosharers/co-owners in the suit land and according to their shares they got the loans. Naksha ' Arra ' and ' Eree ' were correctly prepared and objections of the plaintiff were decided and dismissed on merit. They, accordingly, prayed for dismissal of the suit.

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The plaintiff had based his claim upon the oral partition said to have been effected earlier. In order to prove the same, he examined PW2 Ram Singh, who did state about the oral partition taking place between the parties 20 years ago and about the portion belonging to the share of the plaintiff. However, he also admitted that no partition, either oral or in writing, was effected in his presence. Therefore, the Court is left with sole testimony of the plaintiff. While appearing in the witness-box as PW1, he admitted that he did not report about the oral partition to Halqa Patwari nor made any mention regarding the same before the Electricity Board when he obtained electric connection or to the bank while obtaining loan. He also stated that he did not know as to whether in the revenue record the land belonging to the parties was still shown as joint.

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The plaintiff had challenged the order passed by Assistant Collector 1^st Grade, Amloh by filing an appeal before the Collector but the same was dismissed. He then went before the Commissioner also but failed in his attempt.

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Mere fact that the plaintiff had raised construction on a

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R.S.A. No. 2875 of 2009 -4-

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portion of the land or installed a tubewell did not imply that any oral partition had taken place between the parties. Moreover, in the partition proceedings, which were initiated on the application submitted by Harnek Singh-defendant before Assistant Collector 1^st Grade, Amloh no question of title was involved. The names of the parties to the present suit was reflected in the revenue record and specific share mentioned therein.

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In view of the above, it cannot be said that the findings arrived at by the Courts below were not based upon correct appreciation of the material evidence available on the record. These findings are neither perverse nor do they suffer from any illegality or infirmity. They are, therefore, not liable to be reversed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as formulated by learned counsel for the appellant, do not arise for determination.

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The appeal is, therefore, dismissed in limine.

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August 06, 2009 satish

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( T.P.S. MANN ) JUDGE

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Whether to be referred to the Reporters : YES / NO

Gurcharan Singh v. Gurdev Singh and Ors.

Case brief

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Gurcharan Singh v. Gurdev Singh and Ors.

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