IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

219 RSA-4002-2013(O&M)

Date of decision: 12.11.2025 Roop Lal & Others ...Appellant(s)

Vs.

Mohinder Pal ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Vishal Aggarwal, Advocate Mr. G.S. Sarao, Advocate for the appellants.

Mr. Arvind Kashyap, Advocate for the respondent.

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NIDHI GUPTA, J.

The plaintiffs are in second appeal against the judgment of reversal dated 13.08.2013 passed by learned District Judge, Pathankot whereby Civil Appeal filed by the respondent/defendant against the trial Court judgment dated 06.12.2010, decreeing the suit of the plaintiffs, has been reversed and suit of the plaintiffs has been dismissed.

2. The plaintiffs/appellants had filed suit for separate possession by way of partition. The facts as pleaded in the plaint are that Gopal Chand, father of the plaintiffs and brother of the defendant Mohinder Pal, had purchased suit land measuring 4 marlas as described in the plaint, vide Sale Deed dated 03.10.1979. At the time of purchase, out of love and affection, Gopal Chand had added name of the defendant as purchaser to the extent of 1/5^th share. The defendant was a 14-year-old minor at the time of purchase and plaintiffs were in age group of 3 to 10 years. Subsequently, Gopal Chand had laid the foundations for construction of shops and had purchased the adjoining site measuring 1 marla from Bhikham Singh vide Sale Deed dated 26.08.1986 in the name of Gurdev Raj, his fifth son. In 1987-88, Gopal Chand constructed a building in the suit land measuring 4 marla along with another plot of 1 marla on the northern side. It was pleaded by the plaintiffs that the suit property is joint property of parties, in which the plaintiffs have 4/5^th share and defendant has 1/5^th share. In the Sale Deed dated 03.10.1979, it was recorded that 1/5 share of the defendant would be on the western side of the plot measuring 4 marlas. In 1990, the defendant had requested Gopal Chand to give him his separate portion and his separate accommodation. Gopal Chand with the consent of his sons had given separate western portion to the defendant. It was agreed orally between the parties that staircase shall remain in joint use with the parties. The defendant has not constructed any part of the building constructed by Gopal Chand. He is in occupation of the ground floor; whereas the remaining building, including first floor, is in the use of the plaintiffs. About two years back, the defendant had started proclaiming the staircase to be his exclusive property and threatening to obstruct the plaintiffs from using the staircase. As such, the plaintiffs did not wish to keep the property joint with the defendant and wanted to separate their shares. The plaintiffs had requested the defendant to separate the share by partition by metes and bounds but the defendant had not agreed. Hence, the present suit was instituted on 11.05.2007.

3. Upon appraisal of pleadings and oral & documentary evidence adduced by the parties, the learned trial Court vide judgment and decree dated 06.12.2010 had decreed the suit of the plaintiff with costs. However, the Civil Appeal filed by the defendant was accepted by the learned First Appellate Court vide the impugned judgment and decree dated 13.08.2013.

Hence, present second appeal by the plaintiffs.

4. It is inter alia submitted by learned counsel for the appellants that the Ld. District Judge has totally misinterpreted the evidence on record and given contradictory findings altogether. It is submitted that the Ld. District Judge has wrongly held the temporary adjustment between the parties as a presumption to be the partition of the property which is totally incorrect. The Ld. District Judge has wrongly held that since the parties and are residing separately, therefore they are deemed to be in separate possession as well. It is submitted that merely being in possession cannot given inference of partition; and specially when the revenue records cle