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DHANO & Ors v. TUHI RAM & Ors - RSA-570-1981 [2005] RD-P&H 11 (12 May 2005)

R.S.A.No.570 of 1981

Smt.Dhano and others v. Tuhi Ram and others Present:- Mr.S.K.Biriwal, Advocate,

for Mr.S.V.Rathee, Advocate,

for the appellants.

Ms.Divya Sharma, Advocate,

for Mr.J.L.Malhotra, Advocate,

for respondent Nos.1 to 3.

Ashutosh Mohunta, J.

In order to challenge the judgment and decree dated 13.9.1980 passed by the Additional District Judge, Sonepat, whereby the judgment and decree dated 16.5.1979 passed by the Sub Judge 2nd Class, Sonepat,

decreeing the suit of the plaintiffs, has been set aside, the plaintiffs have filed this appeal.

I have heard the counsel for the parties and have examined the evidenced adduced on record very carefully. The following question arises for consideration before this Court in the present appeal:- Whether or not parties to the suit have earlier partitioned the suit land and, accordingly, they are in possession of their respective shares as per the partition proceedings? R.S.A.No.570 of 1981

The primary contention raised by the learned counsel appearing for the appellants is that the parties to the suit are still in joint possession of the suit land. On the other hand, the stand taken by the learned counsel appearing on behalf of respondent Nos.1 to 3 is that the parties had since long been in possession of their respective shares as per the oral partition effected between them and the same was reduced into writing on 3.10.1972, a copy of which is at Exhibit D8.

After hearing the counsel for the parties and on examining the evidence adduced on record, I do not find any merit in the contention raised on behalf of the plaintiff-appellants. Though in the beginning Smt.Dhano plaintiff, while appearing as P.W.1, stated that the land in question is still joint between the parties and the share of the plaintiff-appellants is one- third, yet a little later she has admitted certain important facts, which cannot be brushed aside easily. There is a specific admission on her part that in all there are three houses and 4 or 5 plots and out of them on House No.1 she is in possession. On the second house, Tuhi Ram is in possession and on the third house Chhatar Singh is in possession. She does not know the length R.S.A.No.570 of 1981

and breadth of the plots but she stated that the possession on the plots is exclusive of the parties. There is no plot which is lying vacant and it is correct that all the three claimants are in exclusive possession of their houses. Chhatar Singh, defendant-respondent No.5, who virtually supported the case of the plaintiffs, admitted that there had been a partition about 30 years ago in the village. The oral evidence of the plaintiffs, coupled with the statement of Chhatar Singh, rather supported the version of respondent Nos.1 to 3, who had taken a specific plea in their written statement that the parties are in exclusive possession of their respective shares as per the partition of the Abadi Deh, which had taken place about 30 years ago. Not only this, there is also documentary evidence to support the version of the defendant-respondents. There has been a suit of partition of the common land of the village which was instituted in the Court of Senior Sub Judge, Rohtak. A certified copy of the proceedings in that suit is at Exhibit P15. At serial No.9 specific plots also find mention which came to the parties to the present litigation. As regards the houses, the partition was given the shape in writing on 3.10.1972. A certified copy of the same is R.S.A.No.570 of 1981

Exhibit D-8. The details of the parties with regard to the present plots also find mention in Ex.D8. Chhatar Singh (D.W.1) had also supported this partition which took the shape in writing (Ex.D8). It has also been mentioned in Ex.D8 that a part of the property was exclusively mortgaged by Balbir Singh, predecessor-in-interest of the plaintiffs. All this evidence goes to show that partition of the suit property between the parties had taken place much earlier and the same was reduced into writing on 3.10.1972.

In the light of the above, I do not find any infirmity in the judgment and decree dated 13.9.1980 passed by the Additional District Judge, Sonepat, and I uphold the same.

Consequently, there is no merit in the present appeal. It is, accordingly, dismissed. However, I do not make any order as to costs.

May18, 2005. ( Ashutosh Mohunta )

KKP Judge


Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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