RSA No.3489 of 2010 (O&M)

-1-

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

REGULAR SECOND APPEAL NO.3489 OF 2010 (O&M)

DATE OF DECISION: JANUARY 18, 2012

Ajit Raj & another

.... Appellants

Versus

Poonam & others

.... Respondents

CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

* * * *

PRESENT: Mr. R. K. Arya, Advocate for the appellants.

* * * *

L.N. MITTAL, J. (ORAL)

CM No.12609-C of 2011

The application is allowed and Annexed order dated 05.02.2001 is

taken on record, subject to all just exceptions.

CM No.10162-C of 2010

For reasons mentioned in the application, which is accompanied by

affidavit, delay of 55 days in filing the appeal is condoned.

CM No.10163-C of 2010

Learned counsel for the appellants states that requisite Court fee has

since been paid. The application is, therefore, allowed.

CM No.10164-C of 2010

Allowed as prayed for.

Main Case

Defendants No.12 and 13 having lost in both the courts below have

filed the instant second appeal.

RSA No.3489 of 2010 (O&M)

-2-

Girdhari Lal-plaintiff filed suit against appellants and respondents

No.6 to 17 for separate possession of 2 marlas plot along with superstructure by

way of partition. Girdhari Lal has since died and is represented by respondents

No.1 to 5 as his legal representatives. The plaintiff alleged that he was cosharer

to the extent of 2 marlas i.e. 2/42 share in land measuring 2 kanals 2 marlas

described in the plaint. The plaintiff was in exclusive possession of two marlas

portion out of said joint land and had constructed a shop and verenda besides

open space therein. Defendants No.1 to 6 (respondents 6 to 12) were the

original cosharers who have alienated land out of the joint land to the remaining

defendants. The plaintiff was being threatened with forcible dispossession of

the suit property which was in his exclusive possession. Accordingly the

plaintiff sought separate possession of his share by partition of the joint land.

Defendants No.10 to 13 contested the suit, whereas remaining

defendants were proceeded ex parte. Defendants No.10 and 11 alleged that

Tehsildar-cum-Collector had already decided the partition proceedings. It was

also alleged that entire joint khata has not been included in the suit. It was also

pleaded that plaintiff has no share in the suit land nor he was in exclusive

possession of the suit portion. It was denied that plaintiff had raised any

construction therein or was running any shop. Later on defendants No.10 and

11 were also proceeded ex parte.

Defendants 12 and 13 (appellants herein) also contested the suit and

denied the plaintiff's version. It was denied that plaintiff is cosharer in the suit

land or is in exclusive possession of the suit portion. It has already been held in

previous litigation that plaintiff is not in possession of the suit portion. Various

other pleas were also raised.

RSA No.3489 of 2010 (O&M)

-3-

Learned Additional Civil Judge (Senior Division), Gurdaspur vide

judgment and preliminary decree dated 06.09.2006 decreed the suit and passed

preliminary decree for separate possession of the plaintiff's share of 2 marla out

of the suit land. First appeal preferred by defendants No.12 and 13 has been

dismissed by Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur

vide judgment and decree dated 04.08.2009. Feeling aggrieved, defendants

No.12 and 13 have filed the instant second appeal.

I have heard learned counsel for the appellants and perused the case

file.

The plaintiff has successfully proved by way of documentary

evidence that he had share of 2 marlas in 2 kanals 2 marlas land in question. He

produced copy of jamabandi Exhibit P-3 along with copy of sale deed Exhibit P-

1 and site plan Exhibit P-2, besides oral evidence. Vide sale deed Exhibit P-1,

the plaintiff purchased 2 marlas share out of 2 kanals 2 marlas land and has,

therefore, been rightly held to be cosharer therein to that extent.

Learned counsel for the appellants contended tha