This court dismissed a regular second appeal in a partition suit in limine, as the plaintiffs argued the defendants raised a new plea after the preliminary decree about a site plan passage that should have been raised earlier.
The regular second appeal is dismissed in limine.
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RSA No. 4460 of 2014
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In the High Court of Punjab and Haryana at Chandigarh
Regular Second Appeal No. 4460 of 2014 (O&M) Date of Decision: 25.5.2017
Krishan and others .....Appellants
Versus
Ishwar Singh @ Ishra and others .....Respondents
CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. Roopak Bansal, Advocate for the appellants.
ANITA CHAUDHRY, J
This is the regular second appeal filed by the defendants as they are aggrieved by the order vide which final decree passed in the partition suit was affirmed.
I have heard the counsel for the appellants.
A civil suit seeking partition of the joint property was filed in 2001. A preliminary decree was passed on 13.9.2004. The plaintiff approached the Court for passing final decree. A Local Commissioner was appointed. An objection was raised by the defendants but the report of the Local Commissioner was accepted as it was found to be frivolous and final decree was passed on 19.7.2011. An appeal was preferred by defendants No. 3 to 7 again raising the plea that a passage leading to the property of the plaintiffs had wrongly been shown by the Local Commissioner and that portion was part of their land. The First Appellate Court found that the passage had been shown in the site plan earlier and there was no objection when the preliminary decree was passed and it did not lie in their mouth to
Gurpreet Singh Bhatia 2017.06.01 12:39 I attest to the accuracy and authenticity of this document Chandigarh
raise this plea.
RSA No. 4460 of 2014
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The site plan which was filed with the original suit had shown the disputed portion as rasta leading to the property of the plaintiff. The Local Commissioner also showed the rasta at the same spot. Both the Courts below had examined this aspect and had considered the site plan filed with the original suit and found that it tallied with the plan prepared by the Local Commissioner to which no objection was then raised. The report of the Local Commissioner also indicates the area, the length and the breadth and also refers to the rasta . The property had been demarcated and thereafter the report was given. The defendants had been unable to show that the rasta was part and parcel of their khasra number. There is no infirmity in the finding of the Courts below.
The appeal is dismissed in limine.
(ANITA CHAUDHRY) JUDGE
May 25, 2017 Gurpreet Whether speaking/reasoned : Yes Whether reportable : No
Gurpreet Singh Bhatia 2017.06.01 12:39 I attest to the accuracy and authenticity of this document Chandigarh
Krishan and others
Ishwar Singh @ Ishra and others
Anita Chaudhry
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
