Davinder Parmar v. Kulbir Singh

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1447, 1448, 1449, 1450, 1451, 1452, 1458 & 1460 kita 16 measuring .

11902.41 situated in Up Mohal Lakkar Bazar (Market) Ward Bara Shimla Tehsil and Distt. Shimla (H.P.) as shown in jamabandi for the ye . ar P2010- 2011 Ext.DW-4/D placed on record. It is pleaded that pla H intiffs are joint owners of suit property and defendants are also f joi nt owners of suit property. It is pleaded that plaintiffs intend t o o partition their share. It is further pleaded that plaintiffs requested the defendants to partition the suit property but despite requests r defetndants did not partition the suit

property. Prayer for decree of u civil suit by way of partition sought. 2. Per contra written statements filed on behalf of co-defendants

No.1, 2 & 4 to 6 C pleadedo therein that plaintiffs deliberately did not include joint land situa ted in villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarp h ur (Punjab) in the present suit. It is further pleaded that suit is

i^bag d for non-joinder of necessary parties. It is further pleaded that correct name of co-defendant No.2 is Mrs. Inderjit Parmar and not Indu Parmar.

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It is further pleaded that suit has not been properly valued for purposes of Court fee and jurisdiction. It is further pleaded that plaintiffs are out of possession of suit land and they have no cause of action to file the partition suit. It is further pleaded that plaintiffs are estopped by their

acts, deeds, conduct and acquiescences to file and maintain the present

suit. It is further pleaded that plaintiffs have not approached the Court

with clean hands. It is further pleaded that status of parties as co-sharers

is not disputed. It is further pleaded that suit for partition of one property

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situated at Shimla is not maintainable on the ground of partial partition of .

joint property inter se parties.

3. Separate written statement filed on behalf of co-defend . antP No.7 Smt. Chander Kanta pleaded therein that suit is filed for pa H rtial partition of joint property and same is not maintainable. It is fur f the r pleaded that suit has been filed relating to immovable prope rty o situated at Shimla town. It is further pleaded that joint property situated at villages Basiala and Binjon Tehsil Garhshankar Distt. r Hosthiarpur (Punjab) have not been

included in the present partitio u n suit. It is further pleaded that suit has not been properly valued for purposes of Court fee and jurisdiction. It is

further pleaded t C hat plaointiffs are estopped by their acts, deeds, conduct and acquiesce nces to file and maintain the present suit. It is further pleaded h that plaintiffs did not approach the Court with clean hands. It is

i^fug rther pleaded that khasra Nos. 1439, 1443, 1451, 1458 and 1460 cannot be partitioned and same should be kept joint because area under above

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khasra numbers is land in relevant record but factually thick forest is situated at spot. It is further pleaded that area of khasra No.1452 is in the shape of path and same cannot be partitioned in accordance with law. It is further pleaded that area mentioned in khasra No.1445 is in the shape

of apple orchard and same cannot be partitioned by the civil Court and

same will be partitioned under H. P. Land Revenue Act by Assistant

Collector Ist Grade of area. It is further pleaded that co-defendant No.7

Smt. Chander Kanta has carried out annual maintenance and repair of

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building situated over suit land and spent expenditure to the tune of .

Rs.30,000,00/- (Thirty lac) in connection with maintenance and repair work of the building situated over suit land and is entitled to . aPnnual maintenance and repair charges in accordance with law H . It is further pleaded that present suit property cannot be divided on the basis of shares recorded in the record of right p lac o ed on

f record prepared by revenue official under H.P. Land Revenue Act 1954. It is further pleaded that shares of parties have not bee r n ptroperly recorded in the record of right prepared by revenue offic u ial under H.P. Land Revenue Act 1954. It is further pleaded that pla o intiffs are out of possession of the suit land. It is further pleaded th C at suit property was acquired by late Dr. Avtar Singh out of income of joint Hindu family fund and suit property in ancestral property for all intents and purposes. It is further pleaded that when Dr.

i^Avg tar Si

hngh purchased suit property in the name of (1) Balbir Singh (2) Gurdeep Singh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh at

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that time only Balbir Singh was major but he had no source of income and he was student only. It is pleaded that Gurdeep Singh, Kulbir Singh, Sukhbir Singh, Satrajbir Singh were minors at the time of sale deed of suit property. It is pleaded that after amendment in Hindu Succession Act

Smt. Chander Kanta d/o late Sh. Avtar Singh became coparcener owner

by way of birth in suit property. During pendency of suit co-defendant

No.7 died and her LR namely Randeep Singh impleaded as co-party. Sh.

Randeep Singh filed separate written statement under Order XXII Rule 4

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sub clause (2) Code of Civil Procedure 1908 and reiterated pleadings of .

deceased Smt. Chander Kanta in toto. Prayer for dismissal of suit sought. Plaintiffs also filed replication and reasserted the allegations men . tionPed in the plaint. H

4. As per pleadings of parties following issues fr f am ed on 26.08.2014: 1. Whether plaintiffs are entitle o d for preliminary decree of partition qua shares of parties as alleged?

…….OPP.

2. Whether suit is not r matintainable and competent as alleged ? u …….OPDs 1,2 & 4 to 7.

3. Wheth o er suit is bad for non-joinder of necessary

C parties ? …….OPDs 1,2 & 4 to 7. h 4. Whether suit has not been properly valued for purposes g

of Court fee and jurisdiction i

…….OPDs 1,2 & 4 to 7. H

5. Whether plaintiffs are estopped by their acts, deeds, conduct and acquiescenes to file and maintain the suit? …….OPDs 1,2 & 4 to 7.

6. Whether plaintiffs have not come to Court with clean hands and suppressed material facts?

…….OPDs 1,2 & 4 to 7.

7. Whether plaintiffs are out of possession of suit property as alleged. If so its effect?

…….OPDs 1,2 & 4 to 7.

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8. Relief.

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5. Court heard learned Advocate appearing on behalf of pla P intiffs and learned Advocates appearing on behalf of defendants and C.ourt also perused the entire records carefully. H

6. Findings upon issue No.1 with reason f s:

6.1 PW-1 Smt. Jasveera Anoop Minhas h o as stated that plaintiff No.1 is her mother and late Sh. Balbir Singh t Pa rmar was her father. She has stated that plaintiff No.1 Smt u . Davi r nder Parmar is residing at Jalandhar because of her old age o she is not able to attend Court. She has stated that Sh. Balbir Singh owned property known as Monastary situated at Upper Mohal L ak C kar Market Shimla (H.P.). She has stated that property was in t h he name of five brothers namely (1) Sh. Balbir Singh Parmar (2) Sh g . Gurdeep Singh Parmar (3) Sh. Kulbir Singh Parmar (4) Sh. Sukhbir i Singh Parmar (5) Sh. Satraj Bir Parmar. She has stated that Sh. Gurdeep H

Singh Parmar is not alive and defendants No.2 to 4 are his legal heirs. She has stated that suit property is joint inter se parties. She has stated that building known as Monastary is also situated over suit property. She has stated that kitchen block, cottage area, toilet block, stable area and open area are also situated over suit property. She has stated that entire

property consists of an area measuring 11902.41 sq. mtrs. situated in

khasra Nos. 1439 to 1452, 1458 and 1460. She has stated that all

brothers have equal share in suit property. She has stated that her father

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Sh. Balbir Singh Parmar also died in the year 1983 and his share was .

inherited in three equal shares by plaintiffs and her grand mother Smt. Gurbachan Kaur. She has stated that Smt. Gurbachan Kaur was . alPive at the time of death of her father namely Balbir Singh. S he H has stated that Smt. Gurbachan Kaur died in the year 2005. She f has stated that after death of Smt. Gurbachan Kaur her shar e o devolved upon all children including Smt. Chander Kanta co-defendant No.7. She has stated that property was purchased in the m r onth of September 1956 through

registered sale deed. She has u stated that certified copies of jamabandi for the year 2005-2006 are Ext.PW-1/A and Ext.PW-1/B. She has stated that

there is no forest C or orcohard in the suit land. She has stated that she and her mother we re in possession of two rooms in the built up house. She has stat h ed that after the death of her grand mother possession was

i^obg tained by other co-sharers who are residing there. She has stated that plaintiffs want partition of suit land. She has stated that before filing

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partition suit she requested defendants to separate shares of plaintiffs and hand over possession but her request was not accepted and her request was delayed on one pretext or other pretext and thereafter present suit for partition filed. She has stated that after death of her father his 1/5^th

share devolved upon plaintiffs and her grand mother in equal shares. She

has admitted that parties to the present suit have joint property in villages

Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab). She

has stated that there is one house at village Basiala which is in joint

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ownership of parties. She has stated that there is also residential house at .

village Binjon comprised of two stories. She has denied suggestion that khasra No. 1445 is in the shape of apple orchard at the spot. . ShPe has stated that she could not state whether khasra Nos. 143 H 9, 1443, 1451, 1458 and 1460 do not fall within definition of land. Sh e has stated that she is not in possession of property situate d a o t Shim

fla. She has admitted that co-defendant No.7 is residing at t Monastary since long. She has denied suggestion that co-defendan r t No.7 is maintaining the Monastary property out of her own funds. She has denied suggestion that co-

defendant No.7 has spe o nt Rsu.30 lac on the maintenance and repair of monastary prope C rty. She has stated that she could not state that funds for purchase o f suit property were generated by late Dr. Avtar Singh from joint funds. She has stated that she does not know that Financial

i^Cog mmiss

hioner Punjab has remanded the case to Assistant Collector vide order dated 30.08.2014. She has admitted that at the time of filing of suit

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plaintiffs were not in possession of any portion of suit property. 6.2 DW-1 Sh. Satnam Singh has stated that he is posted as Naib Tehsildar Garhshankar Distt. Hoshiarpur (Punjab) w.e.f. 29.12.2011. He has stated that he has brought the summoned record of case No.443 of

2010 title Devinder Parmar Vs. Kulbeer Singh. He has stated that

application for partition of land Ext.DW1/A was filed by applicant Devinder

Parmar. He has stated that copy of mode of partition is Ext.DW1/B. He

has stated that all copies are correct as per original record.

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6.3 DW-2 Sh. Vikas Kumar has stated that he is posted as Civil .

Ahlmad in the Court of Additional Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) w.e.f. 23.03.2013. He has stated that he has . brPought the summoned record. He has stated that attested co H py of plaint is Ext.DW2/A, copy of written statement is Ext.DW2/B and attested copy of affidavit of Ranjodh Singh is Ext.DW2/C. He h o as sta

fted that attested copy of counter claim is Ext.DW2/D and t copy of order dated 11.11.2013 passed by Additional Civil Judge (Sr r . Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) is Ext.DW2/E and cop u y of application for striking of counter claim dated 23.8.2013 is Ext.D o W2/F and copy of written statement on behalf of co-defendants No C .3 & 4 is Ext.DW2/G. He has stated that all copies are true and corre ct as per original record. 6.4 h DW-3 Sh. Gurparshad Banga has stated that he is posted as

i^Ahg lmad in the Court of Civil Judge (Jr. Dvn.) Garhshankar Punjab w.e.f. 1.7.2013. He has stated that he has brought the summoned record. He

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has stated that copy of plaint in C.S. No. 614 of 2013 is Ext.DW3/A, attested copy of written statement is Ext.DW3/B. He has stated that he has also brought the record of C.S. No.615 of 2013 title Devinder Parmar Vs. Kulbir Singh and others. He has stated that copy of plaint is

Ext.DW3/C and attested copy of written statement is Ext.DW3/D. He has

stated that all copies are true and correct as per original record.

6.5 DW-4 Sh. Partap Thakur Patwari has stated that he is posted as Patwari in the office of Patwar Circle Station Ward Barwa Shimla since

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March 2014. He has stated that he has prepared copy of missal hakiyat .

Ext.DW4/A. He has stated that jamabandi was prepared during the year 1950-51 but the same is in Urdu language and he does not kn . owP Urdu language . He has stated that copy of jamabandi for th e H year 2000-2001 is Ext.DW4/B and copy of jamabandi for the year 2005-2006 is Ext.DW4/C and copy of jamabandi for the y ea o r 2010

f-2011 is Ext.DW4/D. He has stated that all copies have been t prepared by him and same are correct as per original record. r

6.6 DW-5 Ms. Veena Negi Patwari has stated that she is posted as Patwari in Revenue Reco o rd Rouom D.C. Office Shimla. She has stated that she has brought C copy of jamabandi for the year 1949-1950 with respect to suit land but the same is in Urdu language and she does not know Urdu language h and therefore she is unable to produce copy thereof.

i^6.g 7 DW-6 Sh. Hari Krishan has stated that he is posted as Clerk in the office of Sub Registrar (Rural) Shimla. He has stated that original

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record of sale deed No.44 registered in the office of Sub Registrar on 29.9.1956 is not available in the office because same was burnt in fire which took place in DC office Shimla in December 1972. He has stated that he has brought the certificate from Sub Registrar (Rural) Shimla to

the effect that sale deed is not available in the office because same was

burnt in fire which took place in December 1972. He has stated that

certificate Ext.DW6/A has been issued by Sub Registrar (Rural) Shimla

under whom he is working. He has admitted that entire record was not

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burnt in fire. He has denied suggestion that record summoned is available .

in the office of Sub Registrar (Rural) Shimla. He has also denied suggestion that certificate Ext.DW6/A is false certificate. .P

6.8 DW-7 Sh. Sukhbir Singh has stated that he has H joint land and house with the plaintiffs at Shimla, Basiala and Binjo f n. He has stated that he also owned house at village Basiala bu t t o he agricultural land is joint with the plaintiffs and co-defendants. He has stated that area of agricultural land is 390 kanals. He h r as stated that at village Binjon parties

had also ancestral land and sa u me is joint. He has stated that market value of the house is about Rs.8 to 10 lacs. He has stated that at village Binjon

there is also hou C se and osame is also joint and market value of the house is about Rs.3 t o 4 lacs. He has stated that house over suit land known as Monasta h ry Estate is about 9 biswas. He has stated that there is also

i^ang other small house over suit land and there is also open area over suit land. He has stated that one cottage is also situated at the spot over suit

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land and servant quarters are also situated over suit land. He has stated that orchard is also situated over suit property. He has stated that remaining entire suit land is thick forest area and there are deodar, cheel and oak trees etc. He has stated that area of suit property is not used for

cultivation purpose and is also not used for construction of house. He has

stated that Dr. Avtar Singh was common ancestor. He has admitted that

property at Binjon and Basiala is ancestral property and property in

dispute in civil suit is personal property of parties. He has admitted that

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suit for partition and declaration with respect to suit property situated at .

Binjon and Basiala is already pending in civil Court at Garhshankar Punjab. He has also admitted that partition proceedings of agricultural l . andP with respect to immovable land situated at Binjon and Basiala D H istt. Hoshiarpur Punjab are also pending before revenue Court as well as civil Court. He has stated that in revenue record there is no entry off thick forest relating to suit property. He has stated that h t e d id onot file any application for correction in revenue record. He has r stated that there are about 20 to 25 tenants in the property. He has stated that he has no dispute with respect

to 1/5^thshare being own o ed byu each parties in suit property. He has stated that he is not aw C are ab ut the stage of proceedings of cases pending in revenue court and civil court at Garhshankar Punjab. He has denied suggesti h on that cases at Garhshankar Punjab have attained age of

i^fing ality. 6.9 DW-8 Sh. Randip Singh has stated that suit property was

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purchased by Dr. Avtar Singh. He has stated that he was his maternal grand father. He has stated that Dr. Avtar Singh has five sons and he purchased suit property in the name of his sons. He has stated that at the time of purchase of suit property by Dr. Avtar Singh all his sons except Sh.

Balbir Singh were minors. He has stated that Sh. Balbir Singh was student

at that time. He has stated that money with which suit property was

purchased was inherited by his maternal grand father from his father. He

has stated that late Smt. Chander Kanta was his mother and was

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daughter of Dr. Avtar Singh. He has stated that his mother had 1/6^th.

share in suit property. He has stated that after the death of his mother he inherited her share in the suit property. He has stated that in ad . ditPion to above his mother also inherited share in the suit propert y f H rom her mother Gurbachan Kaur who had inherited share of her son Balbir Singh. He has stated that plaintiffs are not in possession o f a o ny po

frtion of suit property. He has stated that suit property compri t sed of Kothi, Kitchen cottage and servant quarters, lawns, tennis court r and remaining land is forest land. He has stated that there are abo u ut 600 trees over suit property of different species such as Oak, Ce o dar etc. He has stated that there is common path in the suit proper C ty. He has stated that in addition to suit property parties have joint pro perty at village Basiala in District Hoshiarpur Punjab and in village B h injon in District Hoshiarpur Punjab. He has stated that partition

i^prg oceedings with respect to property situated at Punjab are also pending. He has stated that one set is situated in ground floor and same is in

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occupation of Satrajbir Singh Parmar and he is also residing in one set since his birth. He has stated that one set is in occupation of Smt. Inderjeet and her children in upper floor of the main building. He has stated that entire suit property was maintained earlier by his mother and

after her death he is maintaining suit property and he and his deceased

mother Chander Kanta d/o Sh. Avtar Singh have already spent Rs.30 lacs

for maintenance of suit property. He has stated that none of other co-

sharers have contributed towards maintenance of structure over suit

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property. He has stated that total market value of the suit property is .

more than Rs.40 crores. He has stated that plaintiffs have not correctly shown the shares of co-owners in the plaint. He has stated that . hPe was born on 27.04.1968. He has stated that suit property wa H s purchased in the year 1956. He has stated that he has seen sale deed with respect to suit property. He has stated that name of h is o mothe

fr Smt. Chander Kanta does not reflect in sale deed. He has sta t ted that his maternal grand father late Sh. Avtar Singh was Govt. emp r loyee. He has denied suggestion that sons of late Sh. Avtar Singh h u ave 1/5^thshare each in the property known as Monastery. He has admitted that sale deed qua suit property was executed in favou C r of fivoe sons of late Avtar Singh. He has admitted that Sh. Balbir Sing h died in the year 1982. He has denied suggestion that at the time of death of Sh. Balbir Singh he was in occupation of two rooms in

i^Mog naste

hry. He has denied suggestion that said rooms were later occupied by Smt. Gurbachan Kaur. He has denied suggestion that suit property is

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property of five brothers only. He has admitted that in the revenue record suit property is recorded in the ownership of five brothers. Self stated the property was purchased from funds of Hindu undivided family. He has stated that Hindu undivided family comprised of five sons of Dr. Avtar

Singh and his daughter Smt. Chander Kanta and Dr. Rajbeer Singh. He

has stated that he could not produce any document showing that there

was Hindu undivided family consisting of aforesaid persons. He has stated

that he did not file any document relating to Hindu undivided family in his

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written statement. He has stated that Dr. Rajbeer Singh went to England .

somewhere in the year 1954. He has stated that Dr. Rajbeer Singh has independent residence. He has denied suggestion that his mot . hePr was residing separately from his maternal grand father. H H e has denied suggestion that all the brothers are having sep f ara te residence and separate mess. Self stated that before 2005 th o ey were residing jointly. He has admitted that his mother was divorced in the year 1970. He has admitted that his mother was teach r er. t He has stated that he could not

produce any document in orde u r to prove that suit property was purchased with the help of ancestral funds. He has denied suggestion that his

mother Smt. Cha C nder Kaonta had no share in the property till death of Smt. Gurbachan Ka ur. He has denied suggestion that his mother Smt. Chander Kanta ac h quired share in the property after the death of Balbir Singh. Self

i^stag ted that she acquired additional share in addition to her earlier share i.e. 1/6^th. He has stated that forest is not recorded in revenue record. Self

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stated that revenue record is not prepared correctly. He has stated that he did not apply for correction of revenue record regarding suit property. He has admitted that in revenue record suit property is recorded in the ownership of five brothers. He has admitted that after the death of Balbir

Singh his 1/5^thshare is recorded in revenue record in favour of plaintiffs

and late Smt. Gurbachan Kaur. He has admitted that after execution of

sale deed suit property was recorded in equal shares between five

brothers. He has stated that his mother did not challenge the revenue

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entries relating to ownership shares of parties in revenue record during .

her life time relating to suit property. He has admitted that partition proceedings relating to agricultural land and constructed property . sitPuated in two villages Basiala and Binjon are under progress H at Punjab. Self stated that partition proceedings at Punjab filed after fil ing of present suit. He has stated that legal heirs of late Dr. Ranbefer Singh Parmar are disqualified legal heirs. He has stated that SLoP in this regard is pending before Hon'ble Supreme Court of I r ndiat. He has stated that he is an Advocate by profession. He ha u s stated that he is an income tax assessee. He has denied sugges o tion that his mother and he did not maintain Monastary prope C rty. He has denied suggestion that suit property was not purchased from joint Hindu family funds. He has also denied suggestion that join h t Hindu family of late Dr. Avtar Singh did not exist at any point of

i^timg e. 7. Following documentaries evidence filed by parties. (1) Ext.PW1/A

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is copy of sajra kisatbar qua suit property. (2) Ext.PW1/A-1 is copy of jamabandi for the year 2005-2006 qua suit property. (3) Ext.DW1/A is application for partition filed before A.C. 1 st Grade Garhshankar by Smt. Davinder Parmar and Jasbeera LRs of deceased Balbir Singh. (4)

Ext.DW2/A is copy of suit for declaration filed by Sh. Ranjodh Singh in the

Court of Civil Judge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab) title

Ranjodh Singh Vs. Davinder Parmar and others relating to property

situated at village Basiala Tehsil Garhshankar Distt. Hoshiarpur (Punjab).

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(5) Ext.DW2/B is copy of written statement filed in civil suit title Ranjodh .

Singh vs. Davinder Parmar. (6) Ext.DW2/C is affidavit filed by Ranjodh Singh in civil suit title Ranjodh Singh vs. Davinder Parmar. (7) Ex . t.DPW2/D is counter claim filed in C.S. 35/2013 pending before Civ il J H udge (Sr. Dvn.) Garhshankar Distt. Hoshiarpur (Punjab). (8) Ext.DW2/E is order dated 11.11.2013 passed in civil suit title Ranjod h o Singh

f vs. Davinder Parmar etc. (9) Ext.DW3/A and Ext.DW3/B are t copies of suit for partition in C.S. No.614/2013 filed by Smt. Davinde r r Parmar and others pending before Civil Judge (Sr. Dvn.) Garhsha u nkar Distt. Hoshiarpur (Punjab) relating to property situated at village Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab). (10) Ex C t.DW6/oA is certificate given by Sub Registrar Shimla H.P. to the effect th at record pertaining to date 29.9.1956 has been destroyed in fire o h ccurred in D.C. office complex during year December 1972. (11)

i^Exg t.DW4/A is copy of missal hakiyat settlement for the year 1989-1991 qua suit property. (12) Ext.DW4/B is copy of jamabandi for the year 2000-

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2001 qua suit property. (13) Ext.DW4/C is copy of jamabandi for the year 2005-2006 qua suit property. (14) Ext.DW4/D is copy of jamabandi for the year 2010-2011 qua suit property.

8. Submission of learned Advocate appearing on behalf of plaintiffs that plaintiffs are legally entitled for preliminary decree of partition qua shares of parties in accordance with law is accepted for reasons hereinafter mentioned. Court has perused the copy of jamabandi for the year 2010-2011 Ext.DW4/D placed on record qua suit property prepared

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by public official in discharge of official duty. Court has also perused copy .

of missal hakiyat for the year 1989-1991 Ext.DW4/A placed on record qua suit property. In ownership column of jamabandi Ext.DW4/D p . lacPed on record it is recorded that (1) Balbir Singh (2) Gurdeep S H ingh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh s/o Sh. Avtar Singh s/o Raj Singh are owners of suit property in equal s ha o res. In

f remarks column it is recorded that co-owner Balbir Singh d t ied and his 1/5^thshare devolved upon Jasveera d/o deceased Balb r ir Singh and devolved upon Smt. Davinder Parmar widow of dec u eased Balbir Singh and devolved upon Smt. Gurbachan Kaur mother of deceased Balbir Singh in equal shares vide mutation No.86 a C ttestedo on dated 5.5.2000. In the present case Jasveera and Davinder Parmar plaintiffs inherited share of deceased Balbir Singh as per Hind h u Succession Act 1956. Deceased Balbir Singh died intestate and

i^thg ere is no evidence on record that deceased Balbir Singh has executed any testamentary document during his life time. Smt. Davinder Parmar

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and Smt. Jasveera inherited share of deceased Balbir Singh and became co-owners of suit property. It is well settled law that co-owner can file partition suit at any point of time. In view of the fact that in the record of right prepared under H.P. Land Revenue Act 1954 Ext.DW4/A names of

Smt. Davinder Parmar and Smt. Jasveera are recorded as co-owners of

suit property it is held that plaintiffs are legally entitled for relief of

preliminary decree of partition qua their shares in accordance with law for

maximum use of suit property and in order to avoid multiplicity of judicial

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proceedings inter se parties qua suit property. Hence it is held that .

plaintiffs are legally entitled for relief of preliminary decree of partition qua their shares in accordance with law. Issue No.1 is accordingly de . cidPed in favour of plaintiffs. H

Findings upon issue No.2 with reasons:

9. Submission of learned Advocates appfearing on behalf of defendants that present civil suit is filed t fo r poartial partition and same is not maintainable is rejected being r devoid of any force for reasons hereinafter mentioned. It is well settled law that immovable property is

always partitioned khata o wise iun accordance with law. Latest jamabandi of suit land for the C year 2010-2011 is Ext.DW4/D placed on record. As per jamabandi for the year 2010-2011 khata number of suit land is 129 and khatoni h number of suit land is 138 and khasra numbers of suit land are

i¹⁴g 39, 1440, 1441, 1442, 1443, 1444, 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1458 & 1460 kita 16 measuring 11902.41. It is

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well settled law that immovable property situated at villages Basiala and Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab) cannot be partitioned alongwith present civil suit because immovable property situated at villages Basiala and Binjon is beyond territorial jurisdiction of

High Court. It is well settled law that High Court cannot pass any order

qua immovable property situated at Punjab. Jurisdiction of H.P. High Court

is only confined relating to territorial jurisdiction of Himachal Pradesh only.

In view of the fact that partition suit filed for separation of khata No.129 it

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is held that present partition proceedings relating to khata No.129 and .

relating to immovable suit property in Himachal Pradesh is maintainable. It is proved on record that separate partition proceedings are pe . ndPing in Punjab relating to property situated at villages Basiala an H d Binjon Tehsil Garhshankar Distt. Hoshiarpur (Punjab) in accordance with law. As per section 123 and Chapter IX of H.P. Land Re ven o ue Ac

ft 1954 persons whose shares are recorded in last record of rig t hts can file partition proceedings. Names of plaintiffs recorded in own r ership column of jamabandi for the year 2010-2011 Ext.DW4/D u placed on record. Hence it is held that plaintiffs are legally entit o led for partition of suit land. Entries of jamabandi for the year 2010 C -2011 qua suit land Ext.DW4/D remained unrebutted on record. Defend ants did not examine any revenue official in order to rebut entries h recorded in zamabandi Ext.DW4/D. Zamabandi Ext.DW4/D is

i^prg epared by public official in discharge of official duty and is relevant fact under section 35 of Indian Evidence Act 1872. It is well settled law that

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entries recorded by public official in public record in discharge of official duty can be rebutted only by way of examination of public official in Court in accordance with law.

10. Submission of learned Advocates appearing on behalf of defendants that suit for partition is not maintainable because most of the area is covered under forest and on this ground suit filed by plaintiffs be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. Court has carefully perused the entries of jamabandi for the

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year 2010-2011 Ext.DW4/D prepared by revenue official in discharge of .

his official duty. Forest is not recorded over suit land in jamabandi for the year 2010-2011. Jamabandi Ext.DW4/D has been prepared b . y Ppublic official in discharge of his official duty under H.P. Land Rev H enue Act and is relevant fact under section 35 of Indian Evidence Act 1872. Defendants did not adduce any positive cogent and r elia o ble e

fvidence on record to rebut jamabandi for the year 2010-20 t 11 Ext.DW4/D placed on record. Even defendants did not examine an r y revenue official in order to rebut the entry of revenue record prep u ared under H.P. Land Revenue Act 1954. Jamabandi for the year o 2010-2011 Ext.DW4/D placed on record remain unrebutted.

11. Sub mi C ssion of learned Advocate appearing on behalf of co-defenda h nt 7 that in fact suit property was purchased by Sh. Avtar Singh

i^frog m joint family funds and daughter of Sh. Avtar Singh namely Chander Kanta is also legally entitled to inherit suit property alongwith her brother

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in equal shares in addition to share inherited by her from Smt. Gurbachan Kaur is also rejected being devoid of any force for reasons hereinafter mentioned. Suit property was purchased in the name of five persons by way of registered sale deed dated 26.9.1956 in consideration amount of

Rs.20,000/- (Twenty thousand) (1) Sh. Balbir Singh s/o Sh. Avtar Singh

(2) Sh. Gurdeep Singh s/o Sh. Avtar Singh (3) Sh. Kulbir Singh s/o Sh. Avtar Singh (4) Sh. Sukhbir Singh s/o Sh. Avtar Singh (5) Sh. Satrajbir Singh s/o Sh. Avtar Singh. It is well settled law that title in immovable

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property is passed after registration of sale deed. See AIR 1961 Apex .

Court 1747 title Ram Saran Lall and others Vs. Mst. Domini Kuer and others. There is no positive cogent and reliable evidence o . n rPecord in order to prove that suit property was purchased from joi H nt funds. 12. Submission of learned Advocate appearing on behalf of co- defendant 7 that Rs.30 lac spent by Smt. Ch o ander

f Kanta d/o Sh. Avtar Singh and Sh. Randeep Singh legal heir of Smt. Chander Kanta and co- defendant 7 is entitled for compens r ationt is decided accordingly. Whether Sh. Randeep Singh is entitled u for compensation to the tune of Rs.30 lac relating to maintenance and repair of structure will be decided at the time of final partition C in accoordance with law. It is well settled law that at the time of passin g of preliminary decree of partition only shares of parties are defined by way of preliminary decree of partition and matter of

i^cog mpens

hation is always decided in final decree of partition.

13. Submission of learned Advocate appearing on behalf of co-

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defendant 7 that deceased Chander Kanta became co-owner of suit property in the capacity of coparcener is also rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that coparcenery property is always inherited from three generations. In the

present case there is no evidence on record in order to prove that suit

property came from three generations. On the contrary it is proved on

record that suit property is self acquired property of (1) Balbir Singh (2)

Gurdeep Singh (3) Kulbir Singh (4) Sukhbir Singh (5) Satrajbir Singh by

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way of registered sale deed dated 26.9.1956 in consideration amount of .

Rs.20,000/- (Twenty thousand).

14. Submission of learned Advocates appearing on b . ehPalf of defendants that at the time of sale deed dated 26.9.1956 H vendee namely Balbir Singh was major and was student and other f ven dees were minors and on this ground partition suit be dism is o sed is also rejected being devoid of any force for reasons herein t after mentioned. It is proved on record that at the time of execution r of sale deed dated 26.9.1956 father of vendees was government em u ployee. It is well settled law that sale deed can be executed in fav o our of minors by father of minors. Sale deed in favour of minors C is valid sale deed in accordance with law. 15. S ubmission of learned Advocates appearing on behalf of defenda h nts that khasra No. 1452 is path and same be kept as joint in final

i^pag rtition proceedings is accepted for reasons hereinafter mentioned. In jamabandi for the year 2010-2011 Ext.DW-4/D khasra No. 1452 has been

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shown as gair mumkin path. It is well settled law that path shown in record of rights should be kept joint in final partition proceedings for benefits of all co-owners. Order accordingly. Issue No.2 is decided accordingly.

Findings upon issue No.3 with reasons:

16. Submission of learned Advocates appearing on behalf of defendants that suit is bad for non-joinder of necessary parties is rejected being devoid of any force for reasons hereinafter mentioned. It is well

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settled law that in suit of partition all the co-owners are necessary parties. .

Plaintiffs have impleaded all the co-owners as co-party in the present suit. Defendants did not adduce any positive cogent and reliable evid . enPce on record in order to prove issue No.3. Hence it is held that H present suit is not bad for non-joinder of necessary parties. Issue No.3 is decided against defendants on the concept of ipse dixit. (A o n ass

fertion made without proof).

Findings upon issue No.4 with re r asotns:

17. Submission of learned Advocates appearing on behalf of defendants that that su o it hasu not been properly valued for purposes of Court fee and C jurisdiction is decided accordingly. As per jamabandi Ext.DW4/D it h as been specifically mentioned that revenue of suit land is swai. W h ord 'swai' means local rate and surcharge. Actual local rate and

i^sug rcharge not mentioned in latest jamabandi for the year 2010-2011 Ext.DW4/D placed on record. It is well settled law that when partition of

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some structure is sought then Court fee should be affixed as per market value of structure involved in partition proceedings. Defendants did not file any valuation report on record of structure involved in partition case. It is held that at the time of final partition proceedings Local

Commissioner will be appointed and Local Commissioner will assess the

market value of structure in accordance with law and thereafter directions

will be issued to plaintiffs to file requisite Court fee in accordance with law

relating to partition of structure and land situated over suit property. It is

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well settled law that Court can demand the Court fee in accordance with .

law at any stage of the case. Issue No.4 is decided accordingly.

Findings upon issue No.5 with reasons: .P

18. Submission of learned Advocates appearing H on behalf of defendants that plaintiffs are estopped by their acts f , d eeds, conduct and acquiescences to file and maintain the pres o ent suit is rejected being devoid of any force for reasons he r rein t aft er mentioned. Onus to prove issue No.5 is upon defendants No.1, 2 & 4 to 7. Defendants No.1, 2 & 4 to 7 did not adduce any positive u cogent and reliable evidence on record in

order to prove issue No. o 5. Hence issue No.5 is decided against defendants

No.1, 2 & 4 to 7 C on the concept of ipse dixit. (An assertion made without proof).

Finding h s upon issue No.6 with reasons:

i¹⁹g . Submission of learned Advocates appearing on behalf of defendants that plaintiffs have not come to Court with clean hands and

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suppressed material facts from the Court is also rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove issue No.6 is upon defendants. Defendants did not adduce any positive cogent and reliable evidence on record in order to prove issue No.6. Hence issue No.6

is decided against defendants on the concept of ipse dixit. (An assertion

made without proof).

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Findings upon issue No.7 with reasons: .

20. Submission of learned Advocates appearing on b . eh P alf of defendants that plaintiffs are out of possession and plaintiffs are not legally entitled for relief of partition qua their shares is also H rejected being

devoid of any force for reasons hereinafter mentio f ned . It is well settled law that possession of one co-sharer is poss es o sion of all co-sharers as per law. It was held in case reported in AIR 1961 Punjab 528 title Sant Ram Nagina Ram Vs. Daya Ram Nag r inat Ram and others wherein rights

and liabilities of co-owner de u fined as follows: (1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession

of the joint prop C erty byo one co-owner is in the eye of law possession of all. (3) A mer e occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one

i^is g^deem

hed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of co-owner by another. But in order to

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negative the presumption of joint possession on behalf of all on the ground of ouster the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as when co-owner openly asserts his own title and denies that of the other. (5) Passage of time

does not extinguish the right of the co-owner who has been out of

possession of the joint property except in the event of ouster or

abandonment. (6) Every co-owner has a right to use the joint property in

husband like manner. Defendants did not plead right of adverse

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possession against plaintiffs in pleadings qua suit property. In view of .

ruling cited supra it is held that plaintiffs are legally entitled for partition of their shares in joint suit property in accordance with law. .P

21. Share of parties will be as follows for preparation of preliminary decree of partition of suit land^: H

(A) It is held that after registration of sale o deed f before Sub Registrar Shimla (H.P.) qua suit property dated t 24 .9.1956 title of suit property devolved as follows: (1) Sh. Balbir Singh acquired ownership title to the extent of 1/5^thshare in suit u proper r ty. (2) Sh. Gurdeep Singh acquired ownership title to the ex o tent of 1/5

th share in suit property. (3) Sh. Kulbir

Singh acquired ownership title to the extent of 1/5^thshare in suit property.

(4) Sh. Sukhbi r S C ingh acquired ownership title to the extent of 1/5^thshare in suit p h roperty. (5) Sh. Satrajbir Singh acquired ownership title to the ex g tent of 1/5 th share in suit property.

i (B) It is proved on record that Sh. Balbir Singh died intestate in the H

year 1983. There is nothing on record in order to prove that deceased Balbir Singh has executed any testamentary document during his life time qua his share relating to suit property. It is held that 1/5 th share of deceased Balbir Singh devolved as per section 8 of Hindu Succession Act 1956 as specified in clause 1 of the schedule upon Smt. Davinder Parmar

widow of deceased Balbir Singh and upon Jasveera d/o deceased Balbir

Singh and Smt. Gurbachan Kaur mother of deceased Balbir Singh in equal

shares in suit property.

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(C) It is proved on record that Sh. Gurdeep Singh also died intestate. .

There is nothing on record in order to prove that deceased Gurdeep Singh has executed any testamentary document during his life time . quPa his share relating to suit property. After the death of deceas ed H Gurdeep Singh his 1/5 th share devolved as per section 8 of Hindu f Succession Act 1956 upon his LRs as follows Smt. Inderjit Parmar widow of deceased Gurdeep Singh, Harminder Singh s/o deceased t Gur deoep Singh and Jasveera d/o deceased Gurdeep Singh as specifie r d in clause 1 of the schedule in equal

shares in suit property. It is u clarified that if at the time of death of Sh. Gurdeep Singh his moth o er Smt. Gurbachan Kaur was also alive then she had also inherite C d her share as per section 8 of Hindu Succession Act 1956.

(D) h It is a lso proved on record that Smt. Gurbachan Kaur also died

i intestate in the year 2005. There is nothing on record in order to prove th g at Smt. Gurbachan Kaur has executed any testamentary document

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during her life time qua her share relating to suit property. It is held that share of Smt. Gurbachan Kaur inherited by her devolved as per section 15 of Hindu Succession Act 1956 upon her sons and daughters (including children of any predeceased son or daughter) in equal shares relating to

suit property.

Relief:

22. In view of findings upon issues No.1 to 7 preliminary decree of partition is passed. Share of parties in the suit land will be as mentioned in

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para 21 (A), (B), (C) and (D). It is held that final partition cannot be .