Sangita vs Rakesh and Others

L.N. Mittal, J.

C.M. No. 1419-C of 2010:

For reasons mentioned in the application, which is accompanied by affidavit, delay of 199 days in filing the appeal is condoned.

Main Appeal:

Plaintiff Sangita has filed the instant second appeal having remained unsuccessful in both the courts below.

The appellant filed suit seeking declaration that she is owner in possession of 03 kanals 05 marlas land, out of total land measuring 19 kanals 02 marlas, as described in the plaint, having purchased it vide sale deed dated 02.04.1985. Plaintiff also sought partition of the aforesaid joint land measuring 19 kanals 02 marlas and separate possession of her share to the extent of 03 kanals 05 marlas. Injunction to restrain defendants No. 1 and 2 from selling in excess of their share and from raising construction detrimental to the interest of the plaintiff was also claimed.

Defendants No. 4, 5 and 21 were given up in the trial court. Remaining defendants were proceeded ex-parte.

Learned Additional Civil Judge (Senior Division), Hoshiarpur, vide judgment and decree dated 15.06.2006, dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Hoshiarpur, vide judgment and decree dated 25.02.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the appellant and perused the case file.

Suit for partition has been dismissed on account of non-joinder of necessary parties as defendants No. 4, 5 and 21 continued to be co-sharers in the suit land, but suit against them was dismissed as withdrawn. In the absence of said co-sharers, relief of partition could not be granted. Consequently, there is no infirmity or illegality in the judgments of the courts below to this extent.

Learned Counsel for the appellant, however, contended that suit for declaration could not have been dismissed on the aforesaid ground. In view of this contention, I find that following substantial question of law arises for determination in the instant second appeal:

Whether courts below have committed illegality in not granting even the relief of declaration to the plaintiff-appellant?

The plaintiff has led sufficient evidence to prove her case that she is owner in possession to the extent of 03 kanals 05 marlas land in 19 kanals 02 marlas joint land. The appellant has proved copy of sale deed dated 02.04.1985 Ex.P-1 (also Ex.P-X). It depicts that plaintiff has purchased land to the extent of 03 kanals 05 marlas. The vendors were co-sharers in the joint land in excess of the said share. Subsequent entries in revenue record including mutation also corroborate the plaintiff''s case. Plaintiff''s evidence stands unrebutted. The aforesaid documentary evidence is very cogent and reliable and there is no reason to discard the same. Defendants have not even contested the plaintiff''s claim. Unrebutted evidence of the plaintiff is sufficient to establish her claim to the aforesaid extent. It is thus manifest that courts below committed grave illegality in even declining the relief of declaration to the plaintiff. Substantial question of law, framed herein above, is accordingly answered in favour of the plaintiff-appellant.

For the reasons aforesaid, the instant second appeal is partly allowed and judgments and decrees of the courts below are set aside and suit of the plaintiff-appellant is decreed partly declaring that the plaintiff-appellant is owner in joint possession to the extent of 03 kanals 05 marlas land, out of total joint land measuring 19 kanals 02 marlas. Defendants No. 1 and 2 are restrained from selling land in excess of their share out of the joint land.