Dismissed

(O&M)Surain Singh v. Rajinder Kaur & Ors.

Punjab & Haryana HC15 May 2019SAO/35/2005

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed an appeal. The First Appellate Court remanded a partition suit for impleadment of all co-sharers because only a partial portion of joint land was sued upon. The High Court found no infirmity in the remand order.

What did the court decide?

The appeal was dismissed, upholding the First Appellate Court's order to remand the case for impleadment of co-sharers.

(O&M)Surain Singh Vs Rajinder Kaur & Ors. — Partition | Punjab & Haryana HC (2019)

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SAO No. 35 of 2005

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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SAO No. 35 of 2005 (O&M) Date of Decision: 15.05.2019

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Surain Singh ...Appellant

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VERSUS

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Rajinder Kaur and others ...Respondents

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CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA

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Present: Mr. V.K. Shukla, Advocate for the appellant.

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None for respondent.

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SURINDER GUPTA, J. (Oral)

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Heard.

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Plaintiff-Surain Singh filed suit seeking partition of his share in the land bearing khasra no. 127//2/1 measuring 4 kanals 5 marlas as per jamabandi for the year 1997-98. The suit was decreed and a preliminary decree was passed by way of partition of share of plaintiff and defendants out of the suit land. In first appeal, it came to notice of learned Ist Appellate Court that plaintiff has placed on file jamabandi of only one khasra no. 27//1 and not of entire khasra numbers of khewat no. 446, which was joint. Learned Ist Appellate Court took note of the fact that neither full land of khewat no. 446 had been made subject matter of the suit nor all the cosharers as mentioned in jamabandi of the entire land, which was produced before learned Ist Appellate Court as Ex. PX8, had been impleaded as party. The relevant observations of Ist Appellate Court as contained in para 8 are reproduced as follows:-

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“8. During discussion, it had surfaced that jamabandi

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JITENDER KUMAR 2019.05.20 10:32 I attest to the accuracy and integrity of this document Chandigarh

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-2-

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SAO No. 35 of 2005

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relied upon by the plaintiff in the suit is jamabandi for only one khasra number 27//1. It is only small part of the total khewat no. 446. The document adduced in additional evidence in the form of Ex. PX8 is regarding the land constituted full khewat which has other land and other co-sharers. Neither the full land of khewat no. 446 had been made subject part of the suit land nor all the co-sharers mentioned in Ex. PX8 had been impleaded although no specific objection of partial partition had been raised by defendant and also names of parties which has not been joined but were cosharers had not been mentioned in the pleading under the preliminary objections by defendants, court is duty bound to look into documents coming under it in the appellate proceedings. Considering the documents Ex. PX8 to be necessary to arrive just, fair and final adjudication which was allowed to be adduced into evidence in rebuttal to the additional evidence in the form of the sale deed adduced by respondent. Ex. PX8 had been adduced by the appellant-one of the defendants.”

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It is not disputed that in a suit seeking partition entire joint land requires to be mentioned and all the co-sharers in that land are required to be impleaded as party. In this case plaintiff had neither incorporated the joint entire land nor impleaded the co-sharers as party.

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Learned counsel for the appellant has argued that an

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JITENDER KUMAR 2019.05.20 10:32 I attest to the accuracy and integrity of this document Chandigarh

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SAO No. 35 of 2005 -3-

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application was moved before Ist Appellate Court to seek amendment of written statement to incorporate the plea that suit was bad for seeking partial partition, which was dismissed vide order dated 05.03.2005 (Annexure P-1) and learned Ist Appellate Court has not reversed the findings of learned trial Court while remanding the case.

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So far as plea of seeking partial partition is concerned, learned Ist Appellate Court while remanding the case has taken note of the fact and observed that even if this plea has not been raised in the written statement the Court can take note of this in view of facts that have come on record while remanding the case for decision afresh and has observed that judgment and decree passed by learned trial Court is not tenable as entire joint land was not subject matter of the case and all the co-sharers are also not impleaded as party, which amounts to setting aside of judgment of Court below on this score.

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As a sequel of my above discussion, learned Ist Appellate Court has committed no error while remanding the case with direction to learned trial Court to implead all the co-sharers and then to decide the share of each party. I find no legal or factual infirmity in the order of learned Ist Appellate Court, calling for any interference in this appeal, which has no merit.

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Dismissed.

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May 15, 2019 jk

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( SURINDER GUPTA ) JUDGE

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Whether speaking/reasoned: Yes/No Whether Reportable: Yes/No

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JITENDER KUMAR 2019.05.20 10:32 I attest to the accuracy and integrity of this document Chandigarh

(O&M)Surain Singh v. Rajinder Kaur & Ors.

Case brief

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(O&M)Surain Singh v. Rajinder Kaur & Ors.

Case brief

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