RSA-1613-2023 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 114 RSA-1613-2023 (O&M) Date of decision: 04.02.2025 Adarsh Mohan Sharma … Appellant Vs. Ramesh Chander Sharma and others … Respondents CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL Present:- Mr.Kanav Bansal, Advocate for the appellant. SUVIR SEHGAL J. CM-5825-C-2023 1. For the reasons given in the application, it is allowed. 2. Delay of 2 days in the filing of the appeal is condoned. Main case. 3. Appellant-plaintiff is in second appeal before this Court challenging concurrent findings recorded by the two courts. 4. Plaintiff filed a suit for possession by way of partition and for permanent injunction pleading that his father Ram Lal Sharma was the owner in possession of a residential house bearing No. 307-R, Pooja Saini 2025.02.24 15:40 I attest the integrity and accuracy of this order/judgment RSA-1613-2023 (O&M) -2- Model Town, Panipat. Ram Lal Sharma raised construction with the financial aid from the plaintiff and the defendants, who are siblings. He averred that the plaintiff and respondents were in the possession of the residential house in proportion to their respective share and after the death of Ram Lal Sharma on 23.11.1988, they are joint owners in possession of the property to the extent of 1/6th share each. A gift deed dated 10.04.1963 was executed by Ram Lal Sharma in favour of defendant No.1, qua half portion of the suit property and defendant No.1 is in possession of the said share. Alleging that defendants have not partitioned the suit property by meets and bounds and intend to alienate it, plaintiff filed the suit. 5. Upon notice, defendant No.1 filed a written statement contesting the suit inter alia, on the grounds that the gifted portion of the residential house cannot be made the subject matter of partition of the suit property. He claimed exclusive possession over the gifted portion and gave his no objection, in case, the remaining portion of the residential house is partitioned amongst the plaintiff and defendants No.2 to 5. In his written statement, defendant No. 2 admitted the claim of the petitioner. Defendant No.3 also conceded to the claim of the petitioner and stated that the parties are in possession of some portion or the other of the suit property but partition has not taken place. He relied upon a Will executed by Ram Lal Sharma in his Pooja Saini 2025.02.24 15:40 I attest the integrity and accuracy of this order/judgment RSA-1613-2023 (O&M) -3- favour. Defendant No. 4 and 5 filed a joint written statement contesting the suit by taking various preliminary objections. On merits, they averred that the suit property was self acquired by Sh. Ram Lal Sharma and during his lifetime he had partitioned it and executed a Will dated 04.10.1983, Ex.D-1. A specific stand was taken as the suit property stood partitioned during the lifetime of their father and as all the parties are in separate possession, the suit deserves to be dismissed. 6. Plaintiff filed a replication reasserting his claim and on the basis of the pleadings of the parties, trial court framed issues. Both the parties led evidence in support of their respective case and after trial, by judgment and decree dated 05.02.2018, trial Court dismissed the suit. Plaintiff remained unsuccessful in the first appeal, which was rejected by the learned Additional District Judge, Panipat by judgment dated 28.10.2022 resulting in the institution of the instant second appeal. 7. Counsel for the appellant-plaintiff has argued that a forged and fabricated Will had been relied upon by defendants No. 4 and 5 and the Courts erred in failing to examine the validity of the Will. He asserts that the plaintiff and the defendants are in joint possession of the suit property, which is un-partitioned and the suit deserves to be decreed. Pooja Saini 2025.02.24 15:40 I attest the integrity and accuracy of this order/judgment RSA-1613-2023 (O&M) -4- 8. I have heard counsel for the appellant and considered his submissions, besides examining the requisitioned record. 9. The conceded position is that the suit property was owned by Ram Lal Sharma, who is the predecessor of the parties. Plaintiff claims to be joint owner in possession of the property to the extent of 1/6th share alongwith the defendants, whereas the defendants have asserted that the suit property was partitioned and a Will dated 04.10.1983, Ex.D-1, was executed by the deceased whereby the plaintiff and defendant No.2 were disinherited. In his cross- examination, Adarsh Mohan Sharma, appellant, PW-1 admitted that he came to know about his father’s will in the year 2010 and had obtained a certified copy. However, for the reasons best known to him, he never laid a challenge to the Will. Rather in his pleadings, he suppressed the factum of execution of a Will by his father and approached the Court with tainted hands. Will Ex.D-1, has been proved on the record by the respondents by examining Satnam Singh, Deed Writer as DW-5 and Hemant Kumar, Registry Clerk, as DW-4. It has come on the record that both the attesting witnesses of the Will have expired. No finding deserves to be recorded on the legality and validity of the Will Ex.D-1, as it is not been questioned by the appellant. In absence of any challenge to the Will, plaintiff cannot succeed in the suit. Plaintiff has failed to lead any evidence that the Pooja Saini 2025.02.24 15:40 I attest the integrity and accuracy of this order/judgment RSA-1613-2023 (O&M) -5- suit property is coparcenary. On the other hand, the defendants have led evidence to show that the property was self acquired by the deceased, Ram Lal Sharma. In such a situation, the deceased had a right to alienate the property by way of a Will. There is no error in the judgments passed by the courts, which are affirmed. 10. Appeal is devoid of merits and is dismissed with no order as to costs. 04.02.2025 (SUVIR SEHGAL) pooja saini JUDGE Whether Speaking/Reasoned Yes/No Whether Reportable Yes/No Pooja Saini 2025.02.24 15:40 I attest the integrity and accuracy of this order/judgment