Mohan Singh (Deceased) through Lrs vs Kartar Singh (Deceased) through Lrs

Ashutosh Mohunta, J.—The present appeal has been filed against the judgment and decree dated January 16, 1980 passed by the Sub Judge, 2nd Class, Ludhiana, and the judgment dated April 7, 1982 passed by the Additional District Judge, Ludhiana, vide which decree was passed in favour of the plaintiff-respondents for the grant of permanent injunction restraining the present appellant-defendants from interfering or disturbing the possession of the plaintiffs over the suit land.

Briefly, the facts are that respondent-plaintiffs Kartar Singh (deceased) now represented through LRs alongwith Kesar Singh, Harbant Singh, Chanan Singh, filed a suit for permanent injunction against the present appellant- defendants praying therein that the defendants be restrained from causing any interference or disturbance in the property situated in village Mullanpur Dakha, marked as ABCD in the site plan which is in their physical possession. It was averred that the property in dispute was originally a part of a bigger plot marked as ABFGHD in the site plan. One Nahar Singh alias Lachhman Singh, father of the appellant-defendant No. 1 and 5 was originally the co-owner alongwith the respondents. On September 8, 1963 an oral partition of the bigger plot was entered into between Lachhman Singh and Kartar Singh, according to which, the portion marked as ABCD fell to the exclusive share of the plaintiff-respondents, whereas plot marked as EFGH came to the share of Nahar Singh alias Lachhman Singh, father of the present appellants. In pursuance to the partition, both the parties entered into possession of their respective shares and a memorandum of partition was also reduced into writing indicating the share of each of the parties. The said memorandum was duly signed by Nahar Singh and Mohan Singh defendants alongwith the plaintiffs. The present appellants had constructed shops in their portion of the property and are now trying to interfere in the possession of the plaintiff-respondents. It was further alleged that the defendants were strong person and were trying to interfere in the peaceful possession of the plaintiffs. The Sub Judge, IInd Class, Ludhiana, vide his judgment dated January 16, 1980 decreed the suit of the plaintiffs and granted decree for permanent injunction restraining the defendant-appellants from interfereing or disturbing in the possession of the plaintiffs over the land marked as ABCD. The appeal filed by the present appellants was dismissed by the Additional District Judge, Ludhiana, vide his judgment dated April 7, 1982. It is against these judgments and the decrees that the present second appeal has been filed.

Various issues were framed, but the crux of the whole case is whether any oral partition was effected between the plaintiffs and Nahar Singh, father of the appellants, and whether the same was acted upon.

I have heard the learned counsel for the parties and have also gone through the documents on the record.

In order to prove whether an oral partition had taken place between the parties, Kartar Singh (now deceased) had appeared in the witness-box as PW1. He had also examined Pritam Singh (PW2), Kapoor Singh (PW3), Gulzar Singh (PW4), Surjit Singh (PW5) and Om Parkash (PW6). The witnesses had also proved the memorandum of partition (Ex.P1) whereby the larger plot was duly petitioned. Kapoor Singh and Gulzar Singh also deposed that Nahar Singh alias Lachhamn Singh had constructed his shops on his portion of the plot about 13 or 14 years after the partition. I have also persued the memorandum of partition (Ex.Pl) which clearly shows that Mohan Singh and Lachhman Singh had appended their signatures on the said document.

Learned counsel for the appellants argued that the signatures were not of Lachhman Singh. Moreover, Lachhman Singh was not the name of his father and, in fact, his father was Nahar Singh. This statement has been contradicted by Harbhajan Singh, who appeared as DW3 and admitted that his father was also known as Lachhman Singh alias Nahar Singh. Thus, there remains no doubt that the appellants are trying to intentionally deny the factum of partition.

Apart from the above, it was argued by the learned counsel for the appellants that the alleged memorandum of parties (Ex.Pl) is illegal and invalid and not binding on the appellants because the same has not been executed by all the co-sharers in the land. It was also argued that the document was not registered and, as such inadmissible in evidence and cannot be looked into.

The mere fact that the document has not been executed between all the co-sharers, does not render the same to be invalid as far as the present appellants and the respondents are concerned. The same is binding upon them for the purpose of determining the nature of their possession over the land in dispute and the appellants cannot wriggle out of this document only on the ground that the same has not been executed between all the co-sharers. Moreover, there is overwhelming oral evidence in the present case to show that the property in dispute was duly partitioned and definite shares fell to the shares of respective parties. I cannot lose sight of the fact that Mohan Singh had duly signed on the memorandum of partition, which he has admitted and also the fact that Lachhman Singh had also signed it. The appellants are already in exclusive possession of the plot which has come to their shares and are now trying to grab the shares of the respective plaintiffs. The document (Ex.Pl) came into being with the consent of Lachhman Singh alias Nahar Singh (since dead), father of the appellants and Mohan Singh and now they cannot deny the fact of partition. Thus, the said document cannot, in any way, be held to be illegal and invalid. Both the parties had duly signed the said document and are, thus bound by the partition deed. The fact that the partition had taken place between the parties, is further strengthened by the oral evidence which has been adduced. Both the Courts below have rightly come to the conclusion that the plot ABCD is in the exclusive possession of the plaintiff-respondents and have rightly granted a decree of permanent injunction against the appellants.

In view of the above, there is no merit in the present appeal and the same is dismissed.