Kewal Krishan and Another Vs Kasturi Lal and Others

which is supported by affidavit of Hardeep Singh, Clerk to Narinder Kuma r Vadehra, Ad v ocate, Punjab and Haryana Hi g h Court, Chandigarh, the sam e is allowed s u bject to all just exceptions and delay of 55 days in re-filing th e present app e al is condoned.

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MAIN CASE

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Plaintiffs are in second appeal against the concurren t judgments and decrees of the learned Cou r ts below whereby the suit file d by the appellants for separate possession o f 24/42 share of plaintiff by wa y

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of partition b y metes and bounds out of re s idential plot measuring 2 kanal 2 marlas; al o ng with consequential relief of p ermanent injunction, has bee n dismissed with costs by both the Courts bel o w.

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The parties shall hereinafter be referred to as per thei r status befor e the learned trial Court i.e. the appellants as “plaintiffs” an d respondents as “defendants”. 3. The dispute is inter se family. The plaintiffs are the son s of Harbans L al son of Bhagat Ram son of D amodar Dass. Defendant No. 1 Kasturi Lal i s son of Bhagat Ram; defendan t s No.2 to 4 are sons of Kastur i Lal son of B h agat Ram; and defendants No. 5 and 6 are the grandchildren o f Milkhi Ram s on of Bhagat Ram. 4. Brief facts of the case as stated in the plaint are that th e appellants/plaintiffs had filed a suit for sep a rate possession of share of th e plaintiffs by way of partition by metes and bounds out of residential plo t measuring 2 kanal 2 marlas comprised in k h ewat No.42/39 khatauni No.8 8 khasra No.7 0 /suit property as entered in the Jamabandi for the year 2008 - 09 situated i n the Revenue Estate of villag e Keshopur, H.B. No.249, Tehsi l and District G urdaspur. It was the pleaded c a se of the plaintiffs that plaintif f No.1 Kewal K rishan along with Harbans Lal had purchased land measurin g 14 kanal 4 m arla comprised in khatauni No . 91 Rect No.10 Killa No.23/1 (1 - 12) Rect No.20 Killa No.3/1/1 (1-10), 3/1/2 ( 3-12), 8/1(6-1), 8/2 (1-19)fro m Milkhi Ram. After the death of Harbans La l , his share in joint holding wa s

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inherited equally by the plaintiffs being successors of Harbans Lal. It ha s been allege d that plaintiffs are co-sharer to the extent of 2089/3571 shar e in the entire joint holding measuring 178 k a nals 13 marlas. The residentia l plot in dispute is measuring 17 kanals nort h and south side and 22 karam s on eastern a nd western side and same h a s been left for the purpose o f construction of residential houses. It has be e n further alleged that plaintiff s have constr u cted their houses adjacent to the eastern side of the plot i n question and they are using the plot in dispute as the part of thei r courtyard a n d haveli jointly with Kasturi Lal defendant No. 1 who ha s constructed three rooms and one small r o om. After the demise of thei r father, the p laintiffs being co-sharers to the extent of 24/42 share in th e residential plot in question measuring 2 kan a ls 2 marlas are not deriving ful l benefits acc o rding to their share in the resi d ential plot in question. They d o not want to keep their share joint anymor e with the defendants and wan t to get it sep a rated by way of partition by m etes and bounds. F urther it ha s been allege d that defendants no. 1 to 4 ha v e started taking illegal steps t o grab the pr o perty in dispute. They have illegally got entries of Khasr a girdawaries in connivance with the rev e nue officials in the name o f defendant no. 1 showing him in exclusive possession and after that the y have starte d passing illegal threats to di s possess the plaintiffs illegally , forcibly and to raise construction on the entire plot in dispute withou t getting the same partitioned by metes a nd bounds. Their threats ar e

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continuousl y causing stress and strain to plaintiffs and plaintiffs want to ge t there share s eparated by partition by metes and bounds. The plaintiffs hav e requested t h e defendants to effect partiti o n by metes and bounds wit h mutual con s ent by separating the 24/42 share of plaintiff and th e construction already raised be evaluate d and the same be assesse d according t o the share of the parties and a lso requested to deposit fro m making any alteration in the existing p o sition and not to raise an y construction without getting the plot in dis p ute partitioned but defendant s flatly refuse d . Hence, the present suit was fi l ed on 06.08.2012. 5. Upon notice, the defen d ants had appeared and file d written statement resisting the suit of the plaintiffs. Besides forma l objections, the defendants stated that the l a nd in question is being used fo r residential houses; but there are other killa numbers which are being used for other n o n-agriculture purposes which h ave not been incorporated b y plaintiffs. T h ose killa numbers have been concealed and plaintiffs hav e intentionally filed the present suit only reg a rding the suit land which is in exclusive po s session of the defendants as t h ey have raised their residentia l houses in su i t land. It was admitted that the plot in dispute is being used fo r residential p urpose. It has been submi t ted that the plaintiffs hav e themselves c onstructed their residential h o uses in the abadi deh area o f the join hol d ing which has not been inclu d ed in the present suit by th e

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plaintiffs int e ntionally. Denying all other a v erments made in the plaint, a prayer for di s missal of the suit with costs ha s been made.

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6. Replication was filed wh e reby the assertions made in th e written statement were denied and th o se made in the plaint wer e reiterated.

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7. From the pleadings of the parties, following issues wer e framed by t h e learned trial Court:-

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“i. Whether the plaintiff is entitled to get the separat e possession of 24/42 share of the residential plot in question b y way of metes and bounds? OPP ii. Whether plaintiff is entitled to get the consequential relief o f permanent injunction as praye d for? OPP iii. Whether the suit of the plaintiff is not maintainable? OPD iv. Whether plaintiff has not come to the court with clea n hands? OPD

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v. Whether partition has alrea d y taken place between all th e co-sharers and they are there i n his exclusive possession ove r the plot in question? OPD vi. Relief.” 8. On the basis of pleadings and oral & documentar y evidence ad d uced before it, the learned trial Court decided issues No.1 an d 2 against th e plaintiffs and in favour of th e defendants; issues No.3 to 5 against the d efendants being not pressed a s “...defendants has not brough t on file any e vidence in support of these iss u es nor learned counsel for th e defendants h ave addressed any arguments on these issues...”. Accordingly ,

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vide judgm e nt and decree dated 04.10.2 0 16, suit of the plaintiffs wa s dismissed w i th costs. The appeal filed by t h e plaintiffs was dismissed wit h costs by the learned Additional District Judg e , Gurdaspur vide judgment and decree date d 18.12.2018. Hence, present se c ond appeal.

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Learned counsel for t h e plaintiffs submits that th e learned Courts below have incorrectly held that the plaintiffs have no t approached the Court with clean hands. I t is submitted that in fact, th e learned Cou r ts below have not considered t he evidence brought on recor d by the plaintiffs in correct perspective. It is contended that the suit propert y is comprise d in khasra No.70; and the pla i ntiffs have categorically state d that khasra N o.70 pertains to gairmumkin a badi and that there is no othe r such land which is described as gairmumkin abadiin the Jamabandi. It i s submitted t h at however, despite the catego r ic assertion of the plaintiffs, th e learned Cou r ts below have held that the land comprised in other rectangle s and killas is also gairmumkin; and as suc h , the same should have been subject matter of the suit. Accordingly, the l earned Courts below have hel d that the plaintiffs had concealed material f a cts and consequentially, suit o f the plaintiff s was dismissed for partial partition. Learned counsel contend s that part of t he said land is gairmumkin are a and is part of agricultural lan d and therefore, it could not have been considered as gairmumkin abadi. Onl y khasra No.7 0 is the joint property which is gairmumkin abadi; and the sam e cannot be e quated with the gairmumkin agricultural land. As such, th e

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finding of the learned Courts below on issues No.1 and 2 is wholl y erroneous a n d liable to be set aside. It is sta t ed that sufficient evidence wa s led by the plaintiffs from the relevant R e venue Record that the othe r properties a r e not gairmumkin abadi. Thus, the observations of the learne d Courts belo w regarding non-joining of all co-sharers are also wrong . Moreover, the learned Courts below ha v e misread and misconstrue d evidence as a lso the testimonies of the plai n tiff witnesses. There is nothin g on record t o show that the property in dis p ute has been partitioned. It i s accordingly p rayed that the impugned judg m ents and decrees be set aside.

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No other argument is ma d e on behalf of the appellants. 11. I have heard learned c o unsel for the appellants and

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perused the case file in great detail.

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I find no merit whatsoe v er in the submissions made o n

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behalf of th e appellants/plaintiffs. Perusal o f the record of the case show s that it has b e en established on record that the plaintiffs and defendants ar e co-sharers o f Joint Khata including khasra N o .70 as evident from Jamaband i (Ex.P1). It is the case of the plaintiffs tha t khasra No.70 was left for co - sharers for r esidential purposes and that both parties have constructe d their houses thereupon. However, the plai n tiffs had failed to disclose th e existence of other gairmumkin/non-agricultural land in Joint Khata apar t from khasra No.70. Whereas, in fact, th e Joint Khata of khasra No.7 0 includes other gairmumkin areas (khata No.42/39 khatoni No.87), whic h

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plaintiffs ha d failed to include in the suit la n d. The plaintiffs had selectivel y sought parti t ion only of khasra No.70 to s e rve their own interests. This i s established f rom the unequivocal testimo n y of the defendant witnesse s which has n o t been rebutted by the plaint i ffs by cross-examining the sai d witnesses. D W1 had clearly testified that p laintiffs’ houses are located i n other gairm u mkin areas. Admittedly, the learned counsel for the plaintiff s had not cross-examined DW1 on this poi n t, thus, making his statemen t

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legally acceptable.

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Further, there were def i ciencies even in the plaintiffs ’ evidence. The site plan (Ex.P3) produced by the plaintiffs was not proved in accordance w ith law as Draftsman of the said site plan was not produced a s a witness. Moreover, even the said site plan does not depict the plaintiffs a s owners or occupants of the disputed prop e rty. The said fact supports th e claim of D W 1 that plaintiffs are not resi d ing in the disputed area. Th e plaintiffs ev e n failed to provide any photog r aphs or evidence to prove tha t defendants w ere raising new constructions. DW1 testified that their house s were built long before the suit was file d . Even this assertion of DW 1 remained unchallenged in cross-examinatio n . Moreover, PW1 in his affidavi t in examinat i on-in-chief did not mention t h at defendants were trying t o raise new construction. Even further, the plaintiffs did not demonstrate ho w the propose d construction would harm th e ir rights. They did not provid e any details o f what steps defendants too k to construct or how it woul d

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affect them. Plaintiffs also did not pro v ide any evidence that othe r gairmumkin numbers were not part of gair m umkin abadi. 14. It has also come on recor d that the disputed land (khasr a No.70) had already been partitioned a m ong the co-sharers in 198 0 whereafter r espective houses were built. I n actual fact by way of presen t suit, the plai n tiffs had sought correction of R evenue Record, and not a fres h partition. However, the plaintiffs were not able to provide prope r calculation o f their claimed share (24/42) a n d were therefore, found guilt y of concealin g material facts. It was in this b ackground that it was held b y both the Courts below that partial partiti o n cannot be permitted as th e plaintiffs ha d sought partition of only kh a sra No.70 while excluding th e other joint properties.