Second appeal by a plaintiff challenging dismissal of his suit for partition. The court dismissed the appeal, upholding concurrent findings that the plaintiff failed to prove ownership or possession and that the suit was barred by res judicata.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 3713 of 2009 Date of decision : January 07, 2010
Kanhi Ram
....Appellant
versus
Chabila and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. R.S. Sangwan, Advocate, for the appellant
L.N. Mittal, J. (Oral)
This is second appeal filed by plaintiff Kanhi Ram who has been un-successful in both the courts below.
Plaintiff filed suit for possession by way of partition of the suit property comprised of residential houses alleging that the plaintiff has 1/3rd share therein. The parties are said to be descendants of common ancestor Ram Kishan as per pedigree table described in paragraph no. 2 of the judgment of the trial court. Ram Kishan had three sons namely Bhagwan, Paran and Gumani. The plaintiff is descendant in the line of Bhagwan. The suit property in khasra abadi record was shown to be in the ownership and possession of Paran and Gumani whose successors-ininterest/descendants are defendants.
Both the courts below have given concurrent finding of fact that the plaintiff failed to prove his ownership or possession over the suit
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property and the suit is also barred by res-judicata.
I have heard learned counsel for the appellant and perused the
case file.
The plaintiff and Tota Ram had earlier filed another civil suit against the defendants for permanent injunction claiming themselves to be owners in possession (as co-sharers) of the suit property. The said suit was dismissed because the plaintiffs miserably failed to prove their ownership and possession over the suit property. Since issue of ownership was decided in the previous suit, the same issue raised in the instant suit is obviously barred by res-judicata.
Even on merits, the plaintiff in the instant case has also failed to prove his ownership over the suit property. The documentary evidence reveals that the plaintiff or his predecessor was never owner or in possession of the suit property. On the other hand, according to the documentary evidence which is more than 100 years old, defendants (including their predecessors) have been owners in possession of the suit property. Consequently, there is no infirmity in the concurrent finding of the courts below.
Learned counsel for the appellant referred to testimony of defendant no. 11 Het Ram examined by the plaintiff as his own witness. However, the statement of Het Ram would not help the plaintiff because Het Ram has not made any categoric admission in favour of the plaintiff. Moreover, statement of Het Ram would not be binding on the remaining defendants.
Learned counsel for the appellant vehemently contended that since Bhagwan was brother of Paran and Gumani, therefore, plaintiff's
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predecessor Bhagwan also had 1/3rd share in the suit property. The contention cannot be accepted because suit property was not owned by Ram Kishan father of Bhagwan, Paran and Gumani, but was owned by Paran and Gumani only and therefore, neither Bhagwan nor his successor-in-interest (plaintiff) can claim share in the suit property.
In view of the above, I do not find any infirmity in the impugned judgments of the courts below. The instant appeal is completely meritless and frivolous and is accordingly dismissed in limine.
January 07, 2010 ' dalbir'
1 issue framed by the court
Whether the plaintiff had established ownership or possession title to the suit property.
Kanhi Ram
Chabila and others
L.N. Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
