IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 17.11.2025 Harbans Lal ...Appellant(s)

Vs.

Harpal Chand and others ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. S.S.Hira, Advocate for the appellant.

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NIDHI GUPTA, J.

The plaintiff No.1 is in Second Appeal against the concurrent judgments and decrees of the learned Courts below, whereby the suit filed by the appellant for separate possession by way of partition alongwith permanent injunction, has been dismissed by both the Courts below.

2. The facts as pleaded in the plaint are that the plaintiff No.1 is owner to the extent of 5 M of land which was purchased by the plaintiffs from defendant No.1 through registered Sale Deed dated 17.09.1990. Father of plaintiffs No. 2 to 4 had also purchased land measuring 22M through registered Sale Deed dated 23.11.1990. Plaintiffs No.1 and 2 had purchased land in the year 1990 and possession was delivered to them by defendant No.1. Defendants No. 2 and 3 had purchased 9 Marlas of land from defendant No. 1 vide Sale Deed dated 29.06.1993. It was pleaded in the plaint that, however, in the above said sale deeds, specific khasra numbers were not mentioned. Accordingly, plaintiff filed instant suit for separate possession by way of partition alongwith permanent injunction.

3. It is inter alia submitted by learned counsel for the appellant that both the learned courts below erred while passing impugned judgments and decrees as they failed to notice the fact that some of the respondents /defendants have illegally and unlawfully raised construction over the area more than their share. Some of the respondents claimed that they have purchased particular portion of joint holding. However, the said contention is incorrect, as their vendors were merely co-sharer and they cannot transfer better title than they had to sell particular portion out of joint holding/khata is always deemed to be sale of share and as such. Thus, claim of respondents to be the exclusive possession of particular portion of joint holding is absolutely wrong and contrary to law. 4. Learned counsel for the appellant further submits that both the courts below failed to notice that the facts of case in both the civil suits earlier filed by the respondents were different from the present suit filed by appellant/ Harbans Lal and others for partition. It is pertinent to mention here that earlier suit filed by Respondent /Harpal Chand & Sukhdev Raj was for possession of the land measuring 9 marlas bearing Khewat no.1633 Khatuni no.2045, Khasra no.66/6(8-0) which was purchased by them vide sale deed dated 29.06.1993 in the area of village Khawaspur. 2nd suit filed by the aforesaid respondent was that the land measuring 2 kanal 0 marla out of the land measuring 13 kanal 0 Marla Khewat no.1500/1944, 1501/1945, Kasha no.66//6(8-0) & Kasha no.66//7/1 (5-0) situated in village Khawaspur for redemption & joint possession after depositing the mortgage amount Rs. 2500/-. It is submitted that in the aforesaid 2nd suit of the respondents for declaration, appellant/plaintiffs were not a party. The parties in litigation are also different in the present suit; plaintiffs sought relief of separate possession by way of partition of the joint khata by metes and bounds by impleading all the co-sharers as party to this case. Therefore, it cannot be said that suit filed by the present plaintiffs is barred under Order 2 Rule 2 CPC or it is hit by the principle of resjudicata.

5. Learned counsel for the appellant further submits that both the courts below failed to appreciate the law and facts of the case in proper perspective by specifically observing that plaintiff failed to set up his counter claim. It is submitted that in the suit for possession filing of counter claim for partition of entire joint land was not possible or maintainable, because earlier suit filed by respondent no.1 & 2, was only for Possession. Whereas appellant and respondents no. 62 to 64 filed