:1:------------- GURDEV SINGH VS.

BHAJAN SINGH

In the Court of Mrs. Preeti Sukhija,

Addl. Civil Judge (Sr.Divn.),
Phillaur.
Civil Suit no. 200 of 2010
Instituted on: 19.07.2010
Registration No. 2004 of 2013
Filing No. 030400000282010
Decided on: 06.04.2015

Gurdev Singh son of Mehanga Singh son of Dalipa son of Sawan

alias Sobha Singh resident of village Samrai, Tehsil Phillaur, District
Jalandhar
…........ Plaintiff

Versus
Bhajan Singh Mann son of Swaran Singh resident of village
Jamsher, Tehsil & District Jalandhar at present resident of village
Samrai, Tehsil Phillaur, now in USA through his duly appointed
attorney Gurpreet Singh son of Kehar Singh resident of village
Samrai, Tehsi Phillaur, District Jalandhar
…......... Defendant

Suit for separate possession by partition as

owner after declaring that the plaintiff is co-
owner to the extent of ½ share whereas
defendant is co-owner to the extent of 1/2
share with regard to the double storeyed
residential house shown yellow in the site
plan, marked as Annexure A comprising of
two rooms, dining room, kitchen, lobby, bath
room existing on the first floor, marked as
ABCDEFGH shown yellow fully described
:2:------------- GURDEV SINGH VS. BHAJAN SINGH

and marked as ABCD in the site plan marked

as Annexure A bounded as follows:
North: House of Surjit Singh, and
illegally encroached part of the
street, marked as ABCD shown
red in the site plan and the street
itself as well as the house owned
and possessed by
defendant/Gurdev Singh
South: Street and house of Rano
daughter of Mohan Singh and
thereafter house of Jaimal Singh
son of Sawan @ Sobha Singh
predecessor in interest of
plaintiffs
West: Street
East: Street
situated within the abadi of village Samrai,
Tehsil Phillaur
with the consequential relief of permanent
injunction to the effect that the defendant
may be restrained from making any
alteration, changes, constructions in the
double storeyed house owned by the plaintiff
as co-owner and defendant as co-owner to
the extent of ½ share marked ABCDEGH
shown yellow in the site plan, marked as
annexure A consisting of three rooms and
lobby on the ground floor and three rooms
and a lobby existing on the first floor
bounded as follows:
North: House of Surjit Singh, and
:3:------------- GURDEV SINGH VS. BHAJAN SINGH

illegally encroached part of the

street, marked as ABCD shown
red in the site plan and the street
itself as well as the house owned
and possessed by
defendant/Gurdev Singh
South: Street and house of Rano
daughter of Mohan Singh and
thereafter house of Jaimal Singh
son of Sawan @ Sobha Singh
predecessor in interest of
plaintiffs
West: Street
East: Street
situated within the abadi of village Samrai,
Tehsil Phillaur illegally and forcibly except
with the consent of the plaintiff/co-owner
and without getting it partitioned through
Court of law for ever.
Present: Sh. R.P. Sharma, Advocate counsel for plaintiff.
Sh. K.S. Malhi, counsel for defendant

JUDGMENT:

1. Plaintiff has filed the present suit for separate

possession by partition as owner after declaring that the plaintiff is

co-owner to the extent of ½ share whereas defendant is co-owner to

the extent of 1/2 share with regard to the double storeyed residential

house shown yellow in the site plan, marked as Annexure A

comprising of two rooms, dining room, kitchen, lobby, bath room

existing on the first floor, marked as ABCDEFGH shown yellow

:4:------------- GURDEV SINGH VS. BHAJAN SINGH

fully described and marked as ABCD in the site plan marked as

Annexure A as fully detailed and described in the head note of the

plaint. He has further sought the relief of injunction restraining the

defendant from making any alteration, changes, constructions in the

double storeyed house owned by the plaintiff as co-owner and

defendant as co-owner to the extent of ½ share marked ABCDEGH

shown yellow in the site plan, marked as annexure A consisting of

three rooms and lobby on the ground floor and three rooms and a

lobby existing on the first floor as detiled above illegally and

forcibly except with the consent of the plaintiff/co-owner and

without getting it partitioned through Court of law for ever.

2. Briefly stated, the house in dispute as detailed in the

head note of the plaint was previously owned by Hazara Singh son

of Sawan alias Sobha Singh, who had died issue-less leaving behind

Dalip and Jail as his only legal heirs according to Hindu Succession

Act to the extent of ½ share each. So after the death of Hazara Singh

Dalipa and Jaimal became the co-owners to the extent of 12 share

each. After the death of Dalipa, the house in dispute was inherited by

Mehanga Singh and after the death of Mehanga Singh said ½ share

was inherited by present plaintiff. so plaintiff became the co-owner

to the extent of ½ share in the house in dispute. Similarly after the

death of Jaimal ½ share of the house in dispute was inherited by

Kishan Singh, Bissa and Samo @ Samar Kaur. However said

Kishan and Bissa died issue-less and widow-less. So whole ½ share

:5:------------- GURDEV SINGH VS. BHAJAN SINGH

falling to the share of Samo alias Samar Kaur. Said Samo @ Samar

was married to Swarn Singh Mann. So after the death of Samo @

Samar Kaur and Swarn Singh, defendant Bhajan Singh became co-

owner to the extent of ½ share of the house in dispute. The present

plaintiff came from the foreign country and asked the defendant to

get the suit property partitioned, but he refused to do so. So the

plaintiff seeks partition and filed the present suit for separate

possession by partition. Defendant instead of getting the suit

property partitioned as stated above, has threatened to demolish the

suit property and also threatened to make alterations and changes in

the suit property, so that the actual property may not exist on the

spot without the consent of the plaintiff or without getting it

partitioned, but the plaintiff is adamant to do so. Plaintiff asked the

defendant many times to admit the claim of the plaintiff, but

defendant refused to do so. Hence this suit.

3. Upon notice, defendant appeared and filed written

statement taking preliminary objection that the plaintiff has no locus

standi to file the present suit, suit of the plaintiffs is not maintainable

and plaintiff is barred by his own act and conduct from filing the

present suit. The plaintiff has not come to the Court with clean

hands. There was no person as Hazara as alleged to be brother of

grand father of plaintiff. the suit property was never owned and

possessed by alleged Hazara. Mother of defendant, namely Samo @

Samar Kaur was in exclusive possession of the suit property as

:6:------------- GURDEV SINGH VS. BHAJAN SINGH

owner. The electricity connection was also installed in the property

in dispute since the year 1958. The plaintiff has got no right, title or

interest in the property in dispute. On merits all the averments

made in the plaint have been denied specifically and prayed to

dismiss the suit.

4. From the pleadings of parties, following issues were

framed:

1. Whether plaintiff is entitled to relief of separate

possession by partition as owner as prayed for?
OPP
2. Whether plaintiff is co-owner to the extent of half
share as prayed for?OPP
3. Whether plaintiff is entitled to the relief of
permanent injunction as prayed for?OPP
4. Whether plaintiff has no locus standi to file the
present suit?OPD
5. Whether suit of plaintiff is not maintainable? OPD
6. Whether suit of plaintiff is bad for mis-joinder and
non-joinder of necessary parties?OPD
7. Relief

5. In order to prove his case plaintiff examined Satnam

Singh draftsman as PW1, Jarnail Singh attorney of plaintiff Gurdev

Singh appeared as PW2, also examined Karam Singh as PW3 and

thereafter counsel for the plaintiff closed the evidence of plaintiff.

6. On the other hand to rebut the evidence of the plaintiff,

Gurpreet Singh attorney of defendant Bhajan Singh appeared in the

witness box as DW1 and the learned counsel for defendant closed
:7:------------- GURDEV SINGH VS. BHAJAN SINGH

the evidence of defendant.

7. I have heard learned counsel for the parties and have

gone through the judicial record carefully and minutely. My issue-

wise findings are as under:

Issue No.1 to 3:

1. Whether plaintiff is entitled to relief of separate

possession by partition as owner as prayed for?
OPP
2. Whether plaintiff is co-owner to the extent of
half share as prayed for?OPP
3. Whether plaintiff is entitled to the relief of
permanent injunction as prayed for?OPP

8. All these issues are taken up together being

interconnected and in order to avoid the repetition for the sake of

discussion and determination.

9. In order to prove these issues, plaintiff examined Satnam

Singh draftsman as PW1, who has proved on the file site plan of the

property in dispute as Ex. P1/ PW2 Jarnail Singh attorney of

plaintiff Gurdev Singh has reiterated verbatim of the plaint in his

affidavit Ex. PW2/A and proved on the file power of attorney

executed by plaintiff in his favour as Ex. P2, CHHIJRA NASAF Ex.

P3 and its Punjabi Translation Ex. P3/A. PW3 Karam Singh has

also reiterated the verbatim of the plaint in his affidavit Ex. PC.

10. On the other hand, in order to rebut the evidence led by

the plaintiff, Gurpreet Singh attorney of defendant stepped into the

witness box and reiterated verbatim of the written statement and also
:8:------------- GURDEV SINGH VS. BHAJAN SINGH

proved on the file photocopy of the power of attorney Ex. D1, copy

ofjudgment and decree dated 14.08.2014 Ex. D2 and Ex. D3.

11. The learned counsel for plaintiff contended that plaintiff

is entitled for separate by way of partition after declaring him to be

co-owner to the extent of ½ share regarding the property in dispute,

as shown in the site plan Annexure A with specific boundaries as

detailed in the head note of the plaint. Further consequential relief

of permanent injunction is also sought to restrain the defendant not

to make any alteration and changes in half portion of the plaintiff out

of the suit property illegally and forcibly without the consent of the

plaintiff or without getting it partitioned. So prayed to decree the

suit.

12. On the other hand the learned counsel for defendant

contended that suit of the plaintiff is not maintainable in the present

form, as the plaintiff has not come to the Court with clean hands.

There was no person as Hazara alleged to be grandfather of the

plaintiff. Mother Kaur defendant, namely Samo @ Saman Kaur was

in exclusive possession of the property in dispute as owner. Even the

electric connection was also installed in the property in dispute since

the year 1958. plaintiff has got no right, title or interest with the suit

property. So prayed to dismiss the suit.

13. After hearing the learned counsel for the parties and

perused the file, it is evident that case of plaintiff is seeking separate

possession of the suit property after declaring himself to be co-

:9:------------- GURDEV SINGH VS. BHAJAN SINGH

owner to the extent of ½ share whereas defendant is co-owner to the

extent of 1/2 share with regard to the double storeyed residential

house shown yellow in the site plan and fully detailed in the head

note of the plaint.

14. The learned counsel for the defendant first of all

contended that plaintiff himself has admitted Hazara as owner of the

suit property in para no.1 of the plaint, but no person as Hazara is the

brother of Dalipa and Jaimal. When Hazara is not in existence, so

question of partition the suit property does not arise. Plaintiff has got

no right, title or interest to file the present suit. Plaintiff has

miserably failed to prove that Hazara was son of Sobha Singh @

Sawan. Even there are no pleadings regarding this fact that the suit

property was owned by Sawan @ Sobha Singh. The CHHIJRA

NISAF is not per-se admissible and no translator has been examined

to prove the translated copy of CHHIJRA NISAF. Earlier one civil

suit was filed by Bhajan Singh, which was dismissed as withdrawn,

but the counter claim was contested by Gurdev Singh the present

plaintiff and that counter claim was dismissed by the Court of Ms.

Parvinder Kaur, Civil Judge (Junior Division), Phillaur vide

judgment dated 14.08.2014, copy of which is proved on the file as

Ex. D2. No plea has been taken by Gurdev Singh that he is owner of

½ share in the suit property in the counterclaim.

15. The learned counsel for defendant referred the cross

examination of PW2 Jarnail Singh attorney of plaintiff in which he

:10:------------- GURDEV SINGH VS. BHAJAN SINGH

has stated that he do not know about the area of the suit property

regarding which he seeks partition. There is no document proved on

the file to prove the joint property inherited by plaintiff and

defendant from their forefathers. So the plaintiff has failed to prove

his case. He also referred the cross examination of PW3 Karam

Singh in which he has admitted that he could not tell which is the

suit property from the site plan. He denied his knowledge regarding

the area of the property in dispute. Even he could not tell the

boundaries of the suit property and which portion is construction

portion. Although he has stated that Gurdev Singh is co-owner of the

property in dispute and on the disputed property Bhajan Singh is in

possession, but he has not seen any document of owner regarding the

property in dispute. He has admitted that one side of the suit

property there is house of Gurdev Singh plaintiff.

16. Defendant Bhajan Singh himself has admitted in the

written statement that the property in dispute was never owned and

possessed by Hazara, as there was no person as Hazara to be son of

Sawan @ Sobha Singh in the village and the property in dispute was

exclusively owned by Samo @ Saman Kaur mother of defendant,

who got installed an electricity connection in the suit property since

1958 and after the death of his mother he is exclusive owner in

possession of the suit property on the basis of Class-I legal heir of

his mother Samo @ Saman Kaur. It is further stated that Dalipa was

never in possession of the house in dispute. So question of inheriting

:11:------------- GURDEV SINGH VS. BHAJAN SINGH

the disputed property by Mehanga Singh and plaintiff does not arise.

Plaintiff is neither owner nor in possession of the property ind

ispute. From this submission in the written statement, it is evident

that brothers Dalipa and Jaimal being sons of Sawan @ Sobha Singh

is admitted. Although existence of Hazara is denied, but existence of

Hazara is evident from CHHIJRA NISAF. It is also not denied

specifically that plaintiff is successor in interest of Hazara and

defendant is successor in interest of Jaimal and son of Samo @

Saman Kaur daughter of Jaimal. No documentary proof is placed on

the file by the defendant that how Samo @ Samar Kaur was owner

of the suit property and in what capacity she entered in the suit

property. Admittedly she was in possession of the house in dispute

since the year 1958. So relationship is admitted except Hazara. Even

if it is presumed that Hazara was not in existence, even then

successor of Dalipa and Jaimal became owners to the extent of ½

share regarding the suit property. Even if the suit property belongs to

Hazara, even then Hazara died issue-less prior to Dalip and Jaimal.

In the injunction suit filed by Bhajan Singh against present plaintiff

Gurdev Singh regarding seeking injunction and the suit property is

the same property as mentioned in the head note of that counter

claim. Defendant himself has admitted in para no. 9 of the judgment

Ex. D2 that there were only two sons of Sawan Singh, namely

Dalipa and Jaimal and the suit property was exclusively owned by

Samo Kaur and she was in exclusive possession of the property in

:12:------------- GURDEV SINGH VS. BHAJAN SINGH

dispute being Class-I legal heir of Jaimal. Moreover in para no. 45 of

the judgment that the Court is not to decide any question regarding

ownership of the house of Gurdev Singh and Bhajan Singh. So no

ownership claim has been decided in that suit for injunction, even if

counter claim has been dismissed filed by Gurdev Singh present

plaintiff. As the suit property is constructed area situated within the

“ABADI” and no revenue record is available. So plaintiff Gurdev

Singh being legal heir of Dalipa and defendant being legal heir of

Samo Kaur are entitled to separate possession by way of partition to

the extent of ½ share in the suit property. Defendant has failed to

prove this fact specifically how Samo Kaur came into possession of

the property in dispute, rather defendant has specifically proved this

fact that he being the legal heir of Samo Kaur daughter of Jaimal is

in possession of the property in dispute being Class-I legal heir. No

document of title is proved on the file that the suit property was

purchased by Samo Kaur.

17. DW1 Gurpreet Singh attorney of defendant Bhajan

Singh has admitted in the cross examination that name of father of

Jaimal Singh was Sawan and name of mother of Bhajan Singh was

Samo Kaur. It is also admitted that ancestral village of Sawan is

village Samrai, where the property in dispute is situated. He has also

admitted categorically that the suit property is ancestral property and

Gurdev Singh is grand son of Dalipa and Dalipa is brother of Jaimal.

Samo Kaur has two brothers, namely Kissa and Bissa and the
:13:------------- GURDEV SINGH VS. BHAJAN SINGH

property owned by Jaimal was devolved upon Kissa and Bissa in

equal shares. He has also stated that he do not know about the sale

deed or documentary proof of Samo Kaur regarding the suit property

in which she is in possession. He also admitted this fact specifically

and categorically that the suit property is situated within the

“ABADI” of village Samrai and after the death of Dalipa his share

was inherited by Mehanga Singh and then by Gurdev Singh, as both

Dalipa and Jaimal owned agriculture land in village Samrai. It is also

admitted fact that construction was made in the property in dispute

during the pendency of the present suit and share of Kissa and Bissa

went to Samo Kaur and from Samo Kaur to Bhajan Singh defendant

regarding the suit property. So from the cross examination of DW1

Gurpreet Singh attorney of defendant Bhajan Singh is proved on the

file that the suit property is ancestral property and relationship

between Dalipa and Jaimal is also admitted. Thus it is proved on the

file that plaintiff Gurdev Singh and defendant Bhajan Singh are

owners to the extent of ½ share in the suit property being legal heirs

of Dalip and Jaimal Singh. So the suit property is liable to be

partitioned between plaintiff and defendant to the extent of 1/2 share

each.

18. In view of my aforesaid discussion and evidence

produced on the file, I am of the constrained view that plaintiff has

fully proved his case with regard to property as fully detailed in the

head note of the plaint and as such plaintiff and defendant is

:14:------------- GURDEV SINGH VS. BHAJAN SINGH

declared to be co-owner to the extent of ½ share with regard to the

suit property. So the plaintiff is also entitled to separate possession

by way of partition with regard to the property in dispute as detailed

in the head note of the plaint. The defendant is also restrained from

making any alteration, changes, constructions in the double storeyed

house as detiled in the head note of the plaint illegally and forcibly

without the consent of the plaintiff and without getting it partitioned

through Court of law. Accordingly, issues No.1 to 3 are decided in

favour of plaintiff and against the defendant

ISSUE NO. 4 to 6 :

4. Whether plaintiff has no locus standi to file the

present suit?OPD
5. Whether suit of plaintiff is not maintainable?
OPD
6. Whether suit of plaintiff is bad for mis-joinder
and non-joinder of necessary parties?OPD

19. Onus to prove these issues was upon defendant.

However No evidence has been lead by the defendant to prove these

issues nor the learned counsel for the defendant raised any

arguments on these issues. Accordingly, all these issues are decided

against defendant and in favour of the plaintiff.

RELIEF

20. In view of my findings given on the above issues, suit of

plaintiff succeeds and the same is hereby decreed with cost in favour

of plaintiff and against the defendant and the plaintiff Gurdev Singh
:15:------------- GURDEV SINGH VS. BHAJAN SINGH

and defendant Bhajan Singh are declared owners of the suit property

to the extent of ½ share each. So the preliminary decree to the effect

that the plaintiff is entitled to the separate possession by partition to

extent of 1/2 share of the suit property as shown in the site plan

Annexure A and as detailed in the head note of the plaint is hereby

passed in favour of plaintiff and against the defendant. The

defendant is also restrained from making any alteration, changes,

constructions in the double storeyed house as detiled in the head

note of the plaint illegally and forcibly without the consent of the

plaintiff and without getting it partitioned through Court of law.

Decree sheet be prepared accordingly. File be consigned to record

room.

Announced:
06.04.2015 (Preeti Sukhija)
Addl. Civil Judge (Sr. Divn.),
Phillaur.