2023:PHHC:100763

CR No.5166 of 2019 (O&M) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

(207)

CR No.5166 of 2019 (O&M)

Pronounced on: 04.08.2023

Ishwar

.....Petitioner

Versus

Bhim Singh and others

...... Respondents

CORAM:

HON'BLE MR. JUSTICE VIKRAM AGGARWAL

Present:

Mr. Ajay Jain, Advocate

for the petitioner.

Mr. Hemant Bassi, Advocate

for respndents No.1 and 2.

Mr. Gagan Pradeep Singh Bal, Advocate

for respondent No.3.

*****

VIKRAM AGGARWAL

, J. (ORAL)

1.

The present revision petition preferred under Article 227 of the

Constitution of India assails the order dated 05.08.2019 (Annexure P-5) passed by

the Civil Judge (Jr. Division), Hisar, vide which the application filed by the present

petitioner and the proforma respondents under Order 7 Rule 11 CPC (Annexure P-

3) for the rejection of plaint was dismissed.

2.

The facts, briefly put, are that the contesting respondents-plaintiffs

i.e., respondents No.1 to 3 filed a suit for declaration to the effect that they are the

owners in possession of agricultural land measuring 14 Kanals 1 Marla situated at

Village Sandlana, Tehsil Barwala, District Hisar (fully described in the plaint)

which had fallen to the share of the respondent-plaintiff No.1-Bhim Singh in

partition. The prayer also was that the respondents-plaintiffs were entitled to get

their names recorded in the revenue record as owners and the land was not liable

to be partitioned. A declaration to the effect that the order dated 08.02.2017 passed

REKHA SHARMA

2023.08.04 17:53

I attest to the accuracy and

integrity of this document

2023:PHHC:100763

CR No.5166 of 2019 (O&M) 2

by the Assistant Collector 2^nd Grade, Barwala, District Hisar was illegal was also

sought. It was the case of the respondent/plaintiffs that they and the defendants

(i.e., the present petitioners and the proforma respondents) were closely related.

An oral partition had taken place amongst the brothers i.e., respondent

No.1/plaintiff and the present petitioner as also their brother-Kartar Singh in the

year 1976 with regard to the land of the parties and the land in dispute measuring

114 Kanals 1 Marlas came to the share of the respondent/plaintiff No.1-Bhim

Singh and possession was also exchanged. Certain other averments were also

made and the declaration as referred to above was sought.

3.

During the pendency of the suit, an application under Order 7 Rule 11

CPC (Annexure P-3) was moved by the present petitioner/defendant. The case of

the petitioner/defendant was that previously on 03.09.2016, the present

petitioner/defendant and proforma respondent No.1 had filed a civil suit titled as

Shamsher and others Vs. Dhup Singh and others, seeking injunction restraining the

defendants therein (plaintiffs in the present case) from alienating the suit land

therein on the ground that the suit land was joint and the parties were co-sharers. A

plea was raised by the defendants therein (plaintiffs in the present case) namely,

Bhim Singh and others that the suit had already been partitioned on the basis of an

oral settlement. However, this plea was rejected by the Civil Court vide judgment

and decree dated 22.02.2018 (Annexure P-2) and a specific finding was given that

the plea of oral partition had not been established and the disputed land was still

joint. It was averred in the application that though the Civil Suit was dismissed

and injunction was not granted on the ground that no injunction could have been

issued against co-sharers, a clear-cut finding with regard to the plea of oral

partition was given. The appeal filed by Bhim Singh and others was stated to be

pending. It was, therefore, averred that the issue with re