RSA No.1434 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1434 of 2009 (O&M) Date of decision: February 18, 2010. Joginder Singh & Ors. ...Appellant(s) v. Bant Kaur & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Pawan Kumar Gupta, Advocate, for the appellant(s). Shri Vijay Sharma, Advocate, for respondent No.3. Rakesh Kumar Garg, J. (Oral): This is defendants' second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondents for permanent injunction restraining the appellants from interfering in the suit land except in due course of law, has been decreed. In brief, in the civil suit, the plaintiff-respondents had alleged that they were exclusive owners in possession of the suit land and the appellants had no right, title or concern with the land in question except that they had purchased the land adjoining to the land of the plaintiff- respondents and taking undue benefit of the aforesaid fact, the defendants were threatening to interfere in the peaceful possession of the plaintiffs. The suit was contested by the appellants raising various preliminary objections. On merits, it was submitted that the parties were RSA No.1434 of 2009 -: 2 :- co-sharers. It was further denied that the plaintiffs were exclusive owners in possession of the suit land. It was also stated that through the present suit, the plaintiff-respondents wanted to encroach upon the land in possession of the appellants. It was further submitted that the appellants purchased adjoining land measuring 10 bighas 17 biswas vide sale deed dated 19.5.1979 the possession of which was also delivered to them. The courts below on appreciation of evidence recorded a finding of fact that parties were co-sharers and the plaintiff-respondents were in exclusive possession of the suit land. It was also found that partition proceedings between the parties were pending and therefore, the appellants can always claim their right in the suit property in the aforesaid proceedings in due course of law and, thus, a decree was passed restraining the appellants from interfering in the suit land except in due course of law. The lower appellate court on re-appraisal of evidence affirmed the aforesaid findings of the trial court observing that the appellants have failed to controvert the revenue record which was in favour of the plaintiff- respondents. In the present appeal, during the course of arguments learned counsel for the appellants was unable to find fault with the aforesaid findings of the courts below. However, an argument was raised on behalf of the appellants that the lower appellate court had committed an illegality by not deciding the application filed by the appellants under Order 41 Rule 27 CPC in the appeal and, thus, the following substantial question of law arises in the present appeal:- “Whether the lower appellate court has committed an illegality which results prejudice to the rights of the appellants and RSA No.1434 of 2009 -: 3 :- miscarriage of justice by not deciding the application Annexure A-1 under Order 41 Rule 27 CPC along with appeal, hence the judgment in hand passed by the lower appellate court is worth to set aside?” However, learned counsel appearing on behalf of the respondent has refuted the aforesaid argument raised by the appellants and has produced on record a certified copy of the order dated 21.2.2009 passed by the lower appellate court whereby the application under Order 41 Rule 27 CPC for adducing additional evidence filed by the appellants was dismissed vide a separate order. Thus, the argument raised by the appellants is misconceived and based upon wrong facts. It may be pointed out that the appellants have not raised any grouse before this Court challenging the aforesaid order regarding rejection of their prayer for adducing additional evidence by the lower appellate court. In view of the aforesaid fact, no question of law, much less substantial question of law, arises in this appeal. Dismissed. February 18, 2010. [ Rakesh Kumar Garg ] kadyan Judge