R.S.A No. 3016 of 2009 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3016 of 2009 (O&M) Date of decision : May 14, 2010 Sukh Ram, ...... Appellant (s) v. Ramesh, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mrs. Monisha Lamba, Advocate for the appellant. Mr. J.S.Hooda, Advocate for the respondent. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against the judgment of the lower appellate Court partly decreeing the suit of the plaintiff/appellant for permanent injunction claiming that he was owner in possession of the house in dispute measuring 44'x46' since it was his ancestral property, and for restraining the defendant/respondent from interfering in the peaceful possession except in due course of law. The respondent took a plea that he had purchased the property in dispute from the brother of the appellant. R.S.A No. 3016 of 2009 (O&M) ::2:: The trial Court held the appellant to be owner in possession of the property in dispute and decreed the suit. The lower appellate Court, however, found that the respondent had purchased a portion of the house measuring 30'x16' from the brother of the appellant, and further held that despite the purchase, possession continued to be with the appellant and consequently partly decreed the suit for permanent injunction restraining the respondent from interfering in his possession except in due course of law. The lower appellate Court relied upon the fact that the appellant had himself asserted that the property in dispute was his ancestral property; that his father had left behind another dilapidated old house which was being exclusively used by the appellant; and that none of the other brothers of the appellant were shown to have received any share from his father. On the basis of these facts, the lower appellate Court even while partly disbelieving the case set up by both the parties held that the respondent had purchased a piece of 30'x16' out of the property in dispute. The following questions have been proposed :- “ (i) Whether the judgment and decree dated 18.5.2009 is sustainable in the eyes of law ? (ii) Whether the partition of the land can be proved in the absence of non-examination of vendor of the property? (iii) Whether by proving ownership and possession of suit property, the decree ought to have been declined partly to the appellant ? (iv) Whether in the event of non description of property by the respondent, the learned Judge should R.S.A No. 3016 of 2009 (O&M) ::3:: have relied upon the sale deed ? (v) Whether in the absence of counter plea of possession on the basis of sale deed, although not relating to the suit property, the suit ought to have been decreed partly ? (vi) Whether the suit ought to have been decreed in full especially when the location of property as per sale deed is entirely different from proved by Local Commission ? (vii) Whether the respondent approached the Court with clean hands ?” Counsel for the appellant has, however, addressed arguments only on question No. (ii), and on another question which she has formulated after the filing of the appeal viz, whether the property sold to the respondent was a portion of the property in dispute ? With regard to question No. (ii), it may be pointed out that there is no finding of the Courts below that vendor of the respondent ever got the property partitioned. Thus, it must be held that the respondent had purchased a share in the property in dispute. As regards the other question, counsel for the appellant has not been able to persuade me that the finding of fact that the respondent had purchased a piece of 30'x16' out of the property in dispute is either based on no evidence or is based on such misreading of evidence so as to render the same so perverse as to be liable for interference under Section 100 of the CPC. In the circumstances, this appeal is dismissed with a clarification that the respondent has purchased a share of 30'x16' out of the property in dispute, and to claim possession thereof he would have to seek partition. R.S.A No. 3016 of 2009 (O&M) ::4:: No order as to costs. As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) May 14, 2010. JUDGE `kk'