Rashpal Kaur Bhullar vs Bachittar Singh and others

Jaswant Singh, J.—Defendant No. 1/appellant has filed the present second appeal against the judgments and decrees passed by the courts below whereby the suit for separate possession by partition and permanent injunction filed by plaintiff/respondent No. 1 was partly decreed by passing a preliminary decree under Order 20 Rule 18 CPC by the trial court and the appeal filed by defendant No. 1/appellant was dismissed by the appellate court.

Facts necessary for the decision of the present second appeal are that plaintiff/respondent No. 1 filed the suit with the allegations that he was owner in possession to the extent of 1/4th share of the land measuring 5K-5M. It was further alleged that defendants 1 to 5 were also co-owners in the suit property which was joint and un-partitioned. It was further alleged that some rooms were also constructed therein and that defendants 1 to 5 have been threatening to alienate/dispose of the property in dispute without any partition and make construction on the same, while defendant No. 6 had been threatening to auction the specific portion of the suit property. It was also alleged that Manjit Kaur, mother of defendants 1 to 4 had mortgaged 1/2 share out of khasra No. 31/36, 5K-5M with defendant No. 6-Central Co-operative Bank Ltd., Kapurthala. In this background plaintiff filed the suit for separate possession in respect of the suit property; with further relief of permanent injunction restraining defendants No. 1 to 5 from alienating and disposing off the suit property and restraining them from raising any construction over the same.

Upon notice defendants filed separate written statements. Defendant No. 1 in her written statement alleged that the property in dispute is joint ownership of all the co-sharers. It was denied that the plaintiff was owner to the extent of 1/4th share. The defendant No. 2 filed separate written statement on the same lines.

In its written statement, respondent No. 6-The Kapurthala Central Co-operative Bank Ltd., alleged that the property in dispute is not joint and no partition has been made and all the persons having interest in the suit property were in their settled possession. It was further alleged that there exists Shri Kailash Technocrats Co-operative Society Ltd. And one KD Singh, President of the said society had taken industrial loan on different dates in the years 1984 to 1986 amounting to Rs. 95,000/- from the defendant bank and Mrs. Manjit Kaur wife of KD Singh had mortgaged 2K-21/2Ms of land alongwith building in which she is owner of the suit property. The said Society having failed to repay the loan, defendant No. 6- bank initiated proceedings to recover the said loan amount by adopting legal recourse under Punjab Cooperative Society Rules,1963.

Defendants No. 3 and 4 were proceeded against ex parte while suit against defendant No. 7 was dismissed under Order 9 Rule 2 CPC.

On the pleadings of the parties issues were framed. Both sides led evidence in support of their respective pleas. After hearing the learned counsel for the parties and on the basis of material available on record, learned trial court vide impugned Judgement and decree dated 29.11.2007 partly decreed the suit. Aggrieved against the same, defendant No. 1 filed an appeal which was also dismissed by the learned appellate court vide Judgement and decree dated 3.8.2010. Hence the present second appeal.

After hearing the learned counsel for the defendant No. 1/appellant at length and perusing the record, I find no merit in the present second appeal. It has been proved on record that respondent/plaintiff Bachittar Singh is having 1/4th share of 3/4th share of the original owner and co-sharer in the joint land namely Amar Singh as it is amply clear from the Jamabandi for the year 1988-89 (Ex.P1) that the plaintiff Bachittar Singh alongwith his brother Gurmail Singh had purchased 1/2 share of Amar Singh. The courts below have rightly noticed that the plaintiff Bachittar Singh has become owner to the extent of 1K61/4Ms in the joint land for which suit for partition has been filed. It has also been proved on record that the suit for partition is maintainable in view of the admitted construction on a part of the suit property. The sole contention raised that both the courts below while deciding the respective share of the co-sharers and especially that of plaintiff-Bachittar Singh had not considered the effect of the gift deed dated 18.7.2007 (Ex.D1) whereby plaintiff Bachittar Singh had gifted his 1/2 share to the son of the defendant and thus committed an illegality raising a substantial question of law is untenable since this was admittedly neither pleaded in the written statement nor any suggestion was put to that effect to the plaintiff Bachittar Singh at the time of his deposition as PW1. Thus, I find no illegality raising any question of law, much less substantial question of law in the present appeal which is hereby dismissed.