RSA No.4820 of 2012 (O&M)

1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No.4820 of 2012 (O&M)

Date of decision:06.09.2013

Gurbachan Singh

....Appellant

Versus

Jasbir Kaur and others

....Respondents

CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

Present:- Mr. S.N.Gaur, Advocate

for the appellant.

RAKESH KUMAR GARG, J (ORAL)

Admittedly in an earlier litigation i.e. judgment and decree

dated 24.09.1998 (Ex. P-5) passed by Sh. M.C. Mehra the then Addl.

Civil Judge (Senior Division), Kurukshetra, which was affirmed vide

judgment and decree dated 04.12.2002 (Ex. P-7) by Sh. Subhash

Goyal the then First Appellate Court, with slight modification, all the

three co-sharers namely Gurbachan Singh (Defendant No.1),

Gurnam Singh (Predecessor-in-interest of Plaintiffs) and Gurcharan

Singh (Defendant No.2) were held to be co-sharers in possession of

the house in dispute holding further that they were entitled to

separate possession over portions in their respective possession to

the extent of 1/3^rd each till the suit property was partitioned by way of

suit partition. Appeal against the said decree was also dismissed by

this Court.

In view of the aforesaid defendant filed the instant suit to

grant final decree of partition of 1/3^rd share each.

The suit was contested by defendant No.1 only, as

Kadian Savita

2013.09.10 15:30

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.4820 of 2012 (O&M)

2

defendant No.2 admitted the claim of plaintiffs.

The suit was decreed by the trial Court.

Defendant filed an appeal which was dismissed as

under:-

“After hearing learned counsel for both the parties and

perusing the evidence placed on record, this Court does not

find force in the contention of counsel for the appellant as

plaintiffs are not seeking the relief of partition, rather in the

prayer clause the final decree for possession by way of

partition of the suit property has been sought and this is the

only justifiable relief which could be claimed by plaintiffs-

respondents because earlier civil litigation has taken place

between the parties and defendant-appellant has admitted this

fact that one suit for permanent injunction was filed by

Gurbachan Singh against Gurnam Singh and that suit was

decided by the Court of Shri M.C. Mehra, the then Addl. Civil

Judge (Senior Division), Kurukshetra vide judgment dated

24.09.1998, copy of which is Ex.P-5 and appeal was preferred

against that judgment by Gurnam Singh, the predecessor in

interest of the plaintiffs and that appeal was decided by the

Court of Shri Subhash Goyal, the then Addl. District Judge,

Kurukshetra vide judgment & decree dated 04.12.2002, copy

of which is Ex. P-7 and the judgment and decree was affirmed

with slight modification. All the three co-sharers i.e. Gurbachan

Singh, Gurnam Singh and Smt. Surinder Kaur widow of

Gurcharan Singh were held in possession of disputed house

and it was held that they were entitled to get possession over

portion in their respective possession to the extent of 1/3^rd

Kadian Savita

2013.09.10 15:30

I attest to the accuracy and

integrity of this document

High Court Chandigarh

RSA No.4820 of 2012 (O&M)

3

share till the suit property was partitioned by way of suit for

partition as per law and Regular Second Appeal was preferred

by defendant No.1-appellant in this case, i.e. Gurbachan

Singh and that appeal was dismissed by the Hon'ble High

Court of Punjab and Haryana vide judgment dated 17.07.2003,

copy of which is Mark-D and it was held that the plaintiff

Gurnam Singh in that case was merely a co-sharer to the

extent of 1/3^rd share and he was entitled to protect his share till

the property was partitioned and in these premises the present

suit for partition has been filed on 06.09.2005.

So, when the rights of the parties in the suit property has been

determined, i.e. 1/3^rd share each, then there is no sense of

seeking preli