HAMIR SINGH Vs. RAHISH SINGH

JUDGEMENT

(1.) THE plaintiff is in second appeal against the judgment and decree of the learned lower Appellate Court by which the suit filed by the plaintiff for possession by way of partition has been dismissed with liberty to seek his remedy of partition in respect of the entire joint property by impleading all the co -sharers.

(2.) IN brief, the plaintiff filed a suit for partition alleging that gair mumkin plot measuring 10 kanal 10 marla comprised in Khasra No.518/16 (10 -10) situated at Ratia, Tehsil Ratia, District Fatehabad is jointly owned and possessed by the parties. He has claimed 32/210 share in the plot in dispute. In the written statement, besides preliminary objections regarding locus standi, cause of action and maintainability etc., it was pleaded on merits that defendants are the real brothers and were co -owners in equal shares in the land measuring 16 kanal 16 marlas comprising Khara No.518/15 (6 -6), 518/16 (10 -10) situated at Ratia, District Fatehabad. It is alleged that the aforesaid four persons had a share of 4 kanals 4 marlas in the total land measuring 16 kanals 16 marlas and besides the two plots, the said four brothers had two ancestral houses in the area of 21 kanals 21 marlas. The plaintiff and respondent No.2 are the co -sharers in one house whereas the defendants are co -owners in the other house. It is also alleged that all the four brothers had partitioned both the houses in the family settlement and after the partition, plaintiff, defendant No.2 and 3 have sold plots belonging to their share in the family partition. It is further alleged that in between the two plots, a joint street measuring 16' wide was left situated in plot No.518/16(10 -10) having an area of 2 kanals. It was also alleged that some of the purchasers from the plaintiff, defendant No.2 and defendant No.3 have got the sale deeds registered in their names and have also got their mutation sanctioned whereas there were certain purchasers, who, though have not got the sale deed registered, have made the payment and raised construction of their houses after taking possession. The detail of the land which has been sold by the plaintiff measuring 4 kanals 4 marlas is also given in the judgment and decree of the Ist Appellate Court. While upsetting order and decree of the lower Appellate Court, the learned Ist Appellate Court has made the following observations: -

(3.) ADMITTEDLY , gair mumkin plot comprised in khasra No.518/15(6 -6) is also joint of the parties and several others. However, the plaintiffrespondent has not sought partition of the said khasra number. In other words, the plaintiff -respondent has sought partition of only one khasra number as per his convenience and the suit is, thus, clearly bad for partial partition because the plaintiffrespondent has not sought for partition of khasra No.518/15(6 -6) which is also joint of the parties. The observations of the learned trial Court to the effect that gair mumkin plot comprised in khasra No.518/15 (6 -6) is not relevant for adjudication of the present case as the plaintiff respondent has not sought partition of the said khasra number, is patently erroneous and illegal because when the plaintiff -respondent is coming to the court seeking partition of the joint land, he has to seek partition of the entire joint holding of the parties. Further, the learned trial Court has determined the share of one Niranjan Singh as five marlas in the suit land comprised in khasra No.518/16(10 - 10), though, he is not a party to the suit. It is not understandable as to how in a suit for partition, share of a person in the joint land can be determined when he is not a party to the suit. Rather, in fact, the learned trial court has passed a contingent preliminary decree by concluding that the subsequent purchaser, if any, shall step into the shoes of their sellers. I am afraid that on the basis of such a preliminary decree, the court can pass a final decree because even all the co -sharers of the suit land comprised in khasra No. 518/16(10 - 10) are not a party to the suit. In this view of the matter, findings recorded by the learned trial Court on issue no.1 are wholly illegal and erroneous and, thus, unsustainable in law as also on facts and the same are accordingly, reversed and it is held that the suit is bad for partial partition and non -joinder of necessary parties."