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IN THE HIGH COURT OF PUNJAB AND HARYANA
Amit Rawal, J.
Hukam Singh and Others – Petitioners
Versus
M/s Rajdhani Land and Finance and Others – Respondents
Regular Second Appeal No. 2155 of 2009
Decided On : 02-11-2015
In order to prove the adverse possession, it is essential and necessary to ascertain whether such plea was raised and if so raised, there must be hostile possession, denial and repudiation of other co-owners and same should be established by convincing evidence – In essence, mere possession of a co-sharer cannot assert as a right and claim ouster
(B) Civil Procedure Code, 1908, O.6 R.1 – Pleadings – Where pleadings have not been effectively denied, the party asserting a particular fact, has to discharge the burden by leading direct and cogent evidence.
(C) Civil Procedure Code, 1908, S.11 & O.23 R.1 – Resjudicata – Withdrawal of Suit – Once the party while withdrawing the suit, had candidly stated that he wants to file afresh one and the said factum had not been noticed by the Court while granting such permission, subsequent suit had not been filed as per provisions of Section 23, Rules 1, 3 and 4 CPC as the permission is inherent and implied – Dismissal of earlier suit as withdrawn will not operate as resjudicata. (Para 28)
(D) Civil Procedure Code, 1908, O.1 R.9 – Impleadment of Necessary Party – Partition suit – Persons have acquired share in the land in question not impleaded as parties – Suit was not maintainable on the ground of non-joinder of proper and necessary party – It was obligatory on the part of the respondent-plaintiff to ascertain the ownership of the respective shares while filing the suit for partition, and then claim separate possession by way of partition through metes and bounds – Contention that only head of family was required to impleaded as party not accepted. (Para 29)
Amit Rawal, J.
1. This Regular Second Appeal is at the instance of the defendants/legal representatives against the judgment and decree dated 27.02.2009 of the lower Appellate Court, whereby, the suit of the respondent-plaintiff seeking possession by way of partition, has been decreed. In essence, judgment and decree dated 16.11.2006 of the Additional Civil Judge (Senior Division), Faridabad, dismissing the suit, has been reversed.
2. The following substantial questions of law, in my opinion, which are required to be determined by this Court, arise:-
(i) Whether without there being any pleadings qua res judicata and estoppel and without any issue being framed, the lower Appellate Court could hold that the findings of the earlier suit would operate as estoppel against the defendant-appellants?
(ii) Whether the defendant-appellants, being co-sharers, had become owners by way of adverse possession by proving ouster of other co-sharers?
(iii) Whether the suit filed by plaintiff-respondent No. 1 was beyond limitation?
(iv) Whether the suit of plaintiff-respondent No. 1 was bad for mis-joinder and non-joinder of necessary parties?
In order to answer the aforementioned substantial questions of law, it would be apt to give little preface of the matter.
3. RESPONDENT/PLAINTIFF-M/S RAJDHANI LAND & FINANCE THROUGH MADHU GUPTA - SOLE PROPRIETOR, SOUGHT THE POSSESSION OF THE SUIT LAND MEASURING 1 BIGHA 6 BISWAS PUKHTA TO THE EXTENT OF TH SHARE COMPRISED IN KHASRA NO. 1644, KHATA NO. 498, KHEWAT NO. 217 SITUATED IN VILLAGE ANANGPUR, TEHSIL AND DISTRICT FARIDABAD BY WAY OF PARTITION THROUGH METES AND BOUNDS. PLAINTIFF WAS RECORDED AS OWNER TO THE EXTENT OF 1/2 SHARE OF THE SUIT LAND AS PER JAMABANDI FOR THE YEAR 1976-77 AND AKS-SIJRA. BESIDES THIS, HE PURCHASED TH SHARE OF THE SUIT LAND FROM JAGMAL SINGH SON OF SHRI SIBBA VIDE REGISTERED SALE DEED DATED 11.09.1972, WHO WAS ALSO RECORDED AS OWNER/CO-SHARER OF SUIT LAND TO THE EXTENT OF TH SHARE, THUS, PLAINTIFF BECAME OWNER/CO-SHARER IN POSSESSION OF THE SUIT LAND TO THE EXTENT OF TH SHARE AND THE DEFENDANTS WERE OWNERS/CO-SHARERS TO THE EXTENT OF TH SHARE ONLY.
4. It has been further averred that though quite some time back, the suit land had come within abadi of village Anangpur and is surrounded by residential and commercial establishment and thus, has been converted into urban property. Prior to the filing of aforementioned suit on 02.12.1997, a similar suit seeking partition of the land was filed against the father of the defendants, namely, Devi Sahai, but since had already died, therefore, after suffering a statement that he wanted to withdraw the suit with liberty to file fresh one vide order dated 14.10.1997 had withdrawn the same but no liberty was granted to file fresh suit.
5. The aforementioned suit was contested by the defendants by filing joint written statement raising as many as 14 preliminary objections, vis-a-vis, non-maintainability, having been filed with a motive to harass the defendants being counter blast to earlier suit bearing No. 435 of 1978 filed on 14.09.1978, which was decreed on 25.05.1984 in favour of Devi Sahai and appeal filed by the plaintiff was dismissed by the then District Judge, Faridabad on 19.10.1985. The suit was hopelessly barred by time as the plaintiff did not have any interest, title, share/possession in khasra No. 1644 and the houses and shops constructed on the said khasra number was in the knowledge of the plaintiff from 20.10.1985. The entries in the jamabandi for the year 1976-77 and khasra No. 1644, had already been declared wrong, null and void vide judgment and decree dated 25.05.2984.
6. It was also stated that S/Sh. Devi Sahali, Jagmal, Khem Chand and Ram Sarup, father of Parkash, Gian Chand and Mal Chand were joint owners in equal shares of land bearing khewat No. 217 khatuni no. 498 khasra no. 1644(1-6), 1645(1-7), 1646(1-0), 1647(0-10), 1650(0-18), 1651(1-0) and 1652(1-3) total 8 bighas 2 biswas pukhta before 1939-40. The other co-sha
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