NAVDEEP & ANOTHER Vs. KHUSHAL CHAND

JUDGEMENT

(1.) The challenge in the present Regular Second Appeal is to the impugned judgment and decree dated 16.11.2011 passed by the Lower Appellate Court, whereby the appeal filed by the respondent-defendant against the judgment and decree dated 11.5.2011 passed by the trial Court, has been accepted and the suit has been dismissed. Mr.Vijay Kumar Jindal, learned Senior Advocate assisted by Mr.Amardeep Sheoran, Advocate, appearing on behalf of the appellantplaintiffs submits that by virtue of the sale deed dated 8.11.1993, land measuring 5 kanals 3 marlas out of Khewat No.67, Killa No.4 was sold to the respondent-defendant. The revenue record reflects that the parties were in exclusive possession of their respective shares, inasmuch as that Khewat No.67 consisting of Khasra No.4/2 (5-3) is in possession of the respondentdefendant, whereas Khewat No.67, Khasra No.4/1 (1-6) is in the ownership of the appellant-plaintiffs and they are also owner of Khewat No.67, Khasra No.7/1 (2-11).

(2.) He further submits that in October, 2005, the respondentdefendant, stated to have encroached upon the area and in this regard, an application for demarcation of the property was submitted. A report regarding excess area was sought and as per the report, the respondentdefendant has been found to be in possession of excess area and, therefore, the trial Court rightly decreed the suit. However, the Lower Appellate Court, ignored the jamabandies (Ex.P4, Ex.P5 and Ex.D1), which show that the parties to the lis are/were in exclusive possession of their respective Khewat and killa numbers, thus, the property is deemed to have been partitioned, thus, there is illegality and perversity in the finding that the property had not been partitioned and even the demarcation report was not found to be in accordance with law, therefore, the appeal involves the substantial questions of law.

(3.) The Lower Appellate Court, on the basis of the oral and documentary evidence found, that there was no order of partition and, therefore, in the absence of the same, simply by relying upon the jamabandis (Exs.P4 and P-5), the private arrangement could not be termed as a partition in accordance with law. He further submits that no substantial question of law arises in the present case and the appeal may be dismissed. I have heard the learned counsel for the parties and appraised the paper book.