Read Order: Garja Singh v. Orchid Space Design LLP through its Partner and Others

Monika Rahar

Chandigarh, March 3, 2022:  While dealing with a case wherein the petitioner was waiting for 15 long years to get possession, after the partition of his share was determined via a preliminary decree, the Punjab and Haryana High Court has held that the litigation for partition cannot be permitted to continue for eternity, just for the luxury of either party to the litigation. 

The proceedings have come to an end in the best possible manner permitted by law, causing minimum prejudice to any one of the parties, if at all that is must, added Justice Rajbir Sehrawat.  

In this case, on the objections raised by the first respondent, the Trial Court discarded the report submitted by the Local Commissioner providing for the mode of partition. The lower court framed an issue to invite evidence regarding the ownership and possession of the first respondent and further directed the appointment of a fresh Local Commissioner. The petitioner hence approached the High Court with a revision petition under Article 227 of the Constitution of India for setting aside this order. 

The petitioner’s counsel argued that the lower Court’s decision in reopening the entire issue of ownership qua the properties to be partitioned was wrong and that the petitioner’s share was already determined by way of a preliminary decree. The counsel also contended that the respondent should have raised his plea qua ownership, before passing of the preliminary decree, if at all, he had any title to any share in the property. Further, the counsel submitted that the petitioner was taking only his already determined share and that the process of preparation of the final decree was only a ministerial act of identifying the property to be given to the person who was to be provided separate possession by way of partition. 

On the contrary, the respondent’s counsel assailed the report of the Local Commissioner on the ground that the parties were not even associated at the time of preparation of the said report and that the Commissioner was already Local Commissioner at the earlier stage of the litigation and was examined as a witness also. Further, the counsel contended that the said respondent was in possession of the property and he constructed a boundary wall on the property shown to be vacant by the Commissioner.

After having heard parties, the Court found substance in the petitioner’s argument. While opining that although in a suit for partition, there are no plaintiffs and defendants and every defendant could have made a prayer for separation of his share and for carving out his separate parcel of land, the Court noted that none except the petitioner ever made any request to the Court for carving out their separate parcel of land or qua determination of their separate share. Therefore, the Court opined that the preliminary decree was passed only qua the petitioner and that the exercise of carving out separate parcel of the land in the proceedings for preparation of final decree was to be restricted only to handing over the separate possession to the petitioner.

Hence, while opining that the respondent couldnot place any hurdle in the petitioner’s way in preparing for the final decree by carving out his separate parcel of land, Justice Sehrawat added, “Since, none of the other defendants ever came forward to either establish their shares or to claim separate possession, therefore, there is no scope for determining either share or the separate parcel of land of any other co-sharer while preparing final decree in this suit.”

Further, the Court noted that since 2005 the petitioner was struggling to get his share separated and to get the possession thereof, while the first respondent had every opportunity to stake his claim qua the share and to seek separate possession of his share but never chose to make that prayer. In that situation, the effort of the first respondent was only an effort to delay the process of handing over the possession to the petitioner, the Court added. 

Regarding the ownership claim of the respondent, the Court opined that the first respondent was unable to establish his ownership of any share or title to the property which he claimed to be under his possession. Further, the Court opined that even if the first respondent was presumed to be the possession of the part of the property, the same could not be taken to be his exclusive possession as by the fiction of law that has to be taken as joint possession of all the co-sharers (including the petitioner). 

The Court adjudged in this respect, “There is no absolute law that the possession of one co-sharer cannot be disturbed for handing over the possession to the other co-sharer in partition proceedings.”

On the claim of construction of boundary wall, the Court opined that there was nothing on record that anyone of the co-sharer in the land, much less the petitioner, had ever asked or even authorized the said respondent to construct the boundary wall. 

Addressing the issue regarding framing of the charges by the Trial Court with respect to the ownership and possession at the stage of preparation of the final decree, the High Court referred to the judgment of the Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna and others, SLP (C) No.17932 of 2009, wherein contrary was stated. The High Court opined, after this reference that the trial Court cannot reopen the issue of determination of the ownership of shares or the possession thereof by way of adversarial adjudication. It can call for a report from the Commissioner appointed by the Court and there can be also some objections qua the report, if there is one; regarding the measurements, or having anything else to do with the share of the petitioner, but for the purpose of reopening the entire exercise, the process of adjudication afresh could not have been initiated by the Court below, the Court added. 

Thus, setting aside the lower court order, the High Court directed the Trial Court to proceed further with the report of the Local Commissioner for the purpose of preparation of the final decree, so as to hand over the possession to the with respect to the petitioner.

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