The High Court dismissed the appellant's appeal against a decree allowing a partition suit. The court affirmed the lower court's finding that the respondent waived claims to other joint properties, making the suit valid for partial partition.
First appellate court judgments and decrees affirmed; appeal dismissed with no order as to costs.
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RSA No.511 of 2006
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA No.511 of 2006 Date of Decision: 9.10.2009
Pavitar Singh .....Appellant Vs. Shamsher Kaur and others ....Respondents
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
Present : Mr. Arihant Jain, Advocate for the appellant. Mr. G.S.Bhatia, Advocate.
Mr. S.K. Singla, Advocate for respondents no.8 to 11, 16 to 19, 21 to 23, 31 to 33 and 37 to 42.
RAJIVE BHALLA, J (Oral)
The appellant challenges the judgement and decree dated 5.10.2005, passed by Additional District Judge (Adhoc) Fast Track Court, Sangrur, accepting the appeal filed by respondent no.1, and as a result setting aside the judgement and decree dated 10.9.2001, passed by the Civil Judge (Junior Division) Malerkotla.
The plaintiff-respondent no.1 filed a suit for possession by way of partition and in addition prayed for grant of a permanent injunction. The plaintiff pleaded that she is entitled, as an owner, to possession of 1/7th share out of 20 Bighas 7 Biswas 10 Biswasis situated in village Amargarh, Tehsil Malerkotla. The appellant filed a written statement denying her title and in addition prayed that the suit is bad for partial partition. Vide
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judgement and decree dated 10.9.2001, the trial court held that respondent no.1 is owner to the extent of 1/7th share but dismissed the suit for failure to include the entire joint property. Aggrieved by this judgement and decree, respondent no1. filed an appeal.
During the pendency of appeal, respondent no.1 made a statement that she does not claim any right in any other property that may have been owned by her father Harnam Singh, except her 1/7th share in 20 Bighas 7 Biswas and 10 Biswasis. On the basis of this statement, the first appellate court reversed the judgement and decree passed by the trial court and held that as the case set up by respondent no.1 does not suffer from the defect of partial partition, a preliminary decree be drawn up with respect to the suit land.
Counsel for the appellant submits that the first appellate court had no jurisdiction to record the statement of respondent no.1 or to hold that the suit is not bad for partial partition, on a statement made by respondent no.1.
Counsel for respondent no.1, however, submits that as respondent no.1 has given up her rights to any other property that may be owned by her father Harnam Singh, the first appellate court rightly accepted the appeal, set aside the judgement and decree passed by the trial court and decreed the suit for partition.
I have heard learned counsel for the parties, perused the impugned judgement and express my inability to hold that the impugned judgement and decree suffers from any error, as would raise a substantial question of law, much less the substantial questions of law framed by counsel for the appellant. A suit for partition filed without including the
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entire joint property must fail for partial partition. Respondent no.1 suffered a statement before the first appellate court, giving up any right, title or interest that she may have in any other property that may have been owned by her father and, therefore, confined her claim, as a joint owner to property measuring 20 Bighas 7 Biswas and 20 Biswasis situated in village Amargarh. In view of this statement, there was no other joint property to be included or partitioned. The appellant even otherwise has failed to refer to any other property, in which respondent no.1 may have any right, title or interest. As a result the question of law that the suit is bad for partial partition must fail as must also the question that the first appellate court has not appreciated the evidence.
In this view of the matter, the findings recorded by the first appellate court are affirmed and the appeal is dismissed with no order as to costs.
(RAJIVE BHALLA) JUDGE
9.10.2009 GS
3 issues framed by the court
Whether the first appellate court had jurisdiction to accept the appellant's waiver of rights in other joint properties and thereby allow the partition suit.
Whether the suit is bad for partial partition when the appellant has no claim or evidence regarding any other joint property.
Whether the impugned judgment and decree suffer from any error raising a substantial question of law.
Pavitar Singh
Shamsher Kaur
RAJIVE BHALLA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
