Dismissed

Baldev Singh and Ors. v. Jit Singh and Ors.

Punjab & Haryana HC27 Mar 2012RSA/1426/2012

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court dismissed the appeal, holding that the finding of the lower courts that the property was joint was a finding of fact not susceptible to interference and that the limitation period could not be condoned.

What did the court decide?

The appeal was dismissed and the impugned judgment and decree of the Additional District Judge, Kurukshetra, were upheld.

Baldev Singh and Ors. Vs Jit Singh and Ors. — Partition | Punjab & Haryana HC (2012)

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RSA No. 1426 of 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.M. No. 3849-C of 2012 and RSA No. 1426 of 2012 Date of decision 27.03. 2012.

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Baldev Singh and others

...... Appellants.

versus

Jit Singh and others

...... Respondents.

CORAM :- HON'BLE MR.JUSTICE K.C.PURI.

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present : Mr. Ravi Raj Kashyap, Advocate for the appellants.

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K.C.PURI, J.

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Challenge in this appeal is the judgment and decree dated 28.2.2011 passed by Dr. Neelima Shangla , learned Additional District Judge, Kurukshetra, vide which the appeal preferred by the defendants/appellants against the judgment and decree dated 4.9.2008

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RSA No. 1426 of 2012

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passed by Shri Narender Sharma, Additional Civil Judge (Senior Division), Kurukshetra, was dismissed.

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Briefly stated, Jit Singh and Amrik Singh have filed the suit for partition against the defendants/appellants with the allegations that plaintiff No.1 and defendant Nos 4 to 6 are owners of the land measuring 1200 square feet as fully described in the heading of the plaint. The property was originally allotted to Narain Singh. Plaintiff and defendants being legal heirs of Narain Singh are entitled to inherit his property. Narain Singh was allotted the disputed land for residential purposes. The grandfather of the plaintiff and defendant had been living in the house in dispute. The plaintiffs and defendants had settled at different places to earn their livelihood. The suit property remained joint till today. The plaintiffs and defendants partitioned the agricultural land and which is in their exclusive possession as per their shares. The plaintiffs and defendants have no dispute regarding agriculture land but since the suit property is joint, the same is liable to be partitioned according to their shares.

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On put to notice defendant Nos.1 to 3, 4,5,7 and 8 appeared. Two sets of written statements have been filed. Defendant Nos.1 to 3 filed joint written statement and defendant Nos.4,5,7 and 8 filed another joint written statement. Respondent No.6 was proceeded ex-parte.

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Defendant Nos.1 to 3 in their joint written statement have taken preliminary objection regarding maintainability of the suit in the present form, locus standi, plaintiff has not come to the Court with clean hands. The defendants have taken the plea that plaintiffs are not in

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RSA No. 1426 of 2012

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possession of the suit property and the suit has not been properly valued for the purposes of court fee and jurisdiction. It is pleaded that father of the defendants constructed the house 40-45 years ago and thereafter repaired and renovated the same from time to time. Defendant Nos.1 to 3 have incurred more than ten lacs on the improvement and construction. However, it is admitted that agricultural land has been partitioned. Joginder Singh was absolute owner and in possession of the suit property and he raised the construction of the residential house. Joginder Singh executed registered Will dated 16.11.1999 in favour of contesting defendants and the plaintiffs have no concern with the suit property.

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Defendant Nos.4,5,7 and 8 have filed their written statement admitting the claim of the plaintiffs. The factum of private partition in respect of agricultural land was admitted.

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In their replication plaintiffs reiterated of the averments of the plaint and controverted those of the written statements.

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From the pleadings of the parties, following issues were

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framed :-

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i) Whether the plaintiffs are entitled to decree for possession by way of partitioned ?OPP

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ii) Whether the plaintiffs have no locus standi and cause of action to file the present suit ? OPD

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iii) Whether the suit is properly valued for the purpose of court fee ? OPD

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iv) Whether the suit is not maintainable in the present form ? OPD

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v ) Relief.

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The parties have led their respective evidence on the aforesaid

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RSA No. 1426 of 2012

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issues. The trial Court after appraisal of the evidence, decreed the suit of the plaintiffs vide judgment and decree dated 4.9.2008 and passed a preliminary decree to the effect that plaintiff No.1 along with defendant Nos. 4 to 6 are owners to the extent of 1/3^rd share. The plaintiff No.2 along with defendant Nos.7 and 8 are owners to the extent of 1/3^rd in equal shares and defendant Nos.1 to 3 are owners to the extent of 1/3^rd share out of the total disputed land.

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Feeling dissatisfied with the judgment and decree dated dated 4.9.2008, the defendants/appellants have directed the appeal before First Appellate Court. The learned Additional District Judge, Kurukshetra, vide judgment decree dated 28.2.2011 dismissed the said appeal.

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Still feeling dissatisfied with the aforesaid judgments and decrees, the present regular second appeal has been directed by the defendants/appellants.

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Learned counsel for the appellants has submitted that following substantial questions of law have arisen in the present appeal : -

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i) Whether the impugned judgments and decrees are bad because of misreading/ non-reading of the pleading/ evidence on the record thus unsustainable ?

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ii) Whether the report of local Commissioner by any stretch of any imagination can be taken as proof that the house in question was owned jointly by the parties ?

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iii ) Whether the alleged record of rehabilitation Department which is not put to scrutiny is per se admissible without proof and the judgments of courts below is based on wrong notion of law ?

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iv ) Whether once the alleged documents is not public document and is photocopy the same can be read an evidence even if the same is alleged executed as mere

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RSA No. 1426 of 2012

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exhibition of document does not dispense with its proof ? 11 Along with the suit, the defendants/appellants have filed an application under Section 5 of the Limitation Act praying for condoning the delay of 297 days in filing the appeal.

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It is contended in the application that the appellant is not keeping good health and is suffering from prostate grland diseases and was operated in Apna Hospital, Kurukshetra on 17.06.2011 and he was only fit on 15.3.2012 and thereafter the present appeal has been filed. However, from the perusal of the impugned judgment it is revealed that there were three defendants/appellants and in the application regarding illness of one of the -applicants-appellants has been mentioned and none else. No doubt the Courts normally condoned the delay in filing the appeal but where there is a gross negligence, in that case, the delay should not be condoned in routine. The appellants have failed to make out a case for condoning the delay in the present case.

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Learned counsel for the appellants has submitted that plaintiffs have failed to prove that Narain Singh was the original owner of the disputed property. The report of the Local Commissioner cannot be relied upon to prove the fact that the property is joint. The documents regarding allotment of the property to Narain Singh is not duly proved. The said document is not a public document and cannot be read into evidence. Both the Courts below have misread and misappropriated the evidence.

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I have carefully considered the said submission and have perused the records of the case.

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RSA No. 1426 of 2012

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The only question for determination in the present lis is whether the suit property is joint. Both the Courts below have given a categoric finding that suit property is joint. That being a finding of fact cannot be interferred in the regular second appeal. There is nothing on the file to show that the said findings are based upon misreading and misinterpreting the evidence on the file. The plaintiffs have proved the factum of allotment of the suit property to the predecessors-in-interest of the parties. So, both the Courts below have rightly ordered the partition of the suit property. The report of the Local Commissioner cannot be evidenced regarding jointness but the plaintiffs have been able to prove the fact that property is joint. The record produced by the Rehabilitation Department carries weight and has to be accepted. Moreover, it is a civil case and has to be decided on the preponderance of the evidence. The plaintiffs have produced the evidence regarding allotment of the plot to Narain Singh and there is no contrary evidence produced by the defendants/appellants in support of their contention. It cannot be said that documentary evidence produced by the Rehabilitation Department is not a public document.

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There is also nothing on the file to show that both the Courts below have misread and misinterpreted the evidence on the record. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. 17. Consequently, the appeal is without any merit and the same stands dismissed being barred by limitation as well.

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RSA No. 1426 of 2012

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A copy of this judgment be sent to the trial Court for strict

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compliance.

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( K.C. PURI ) JUDGE

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March 27, 2012

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Baldev Singh and Ors. v. Jit Singh and Ors.

Case brief

What is this about?

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Baldev Singh and Ors. v. Jit Singh and Ors.

Case brief

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