R. S. A. No. 2243 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2243 of 2011 (O&M) Date of Decision : May 20, 2011 Satya .... Appellant Vs. Jagir Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ramesh Chand Sharma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 6218-C of 2011 : Allowed as prayed for. C. M. No. 6219-C of 2011 : Although averments made in the application supported by affidavit do not satisfactorily explain the delay of 113 days in filing the appeal, yet adopting liberal approach, the said delay is condoned. Main Appeal : Defendant no.1 Satya, who was successful in the trial court, but has been partly unsuccessful in the lower appellate court, has filed the R. S. A. No. 2243 of 2011 (O&M) 2 instant second appeal. Respondent no.1-plaintiff Jagir Kaur filed suit against defendant no.1-appellant and against proforma respondents no.2 to 4 as defendants no.2 to 4. The plaintiff alleged that her husband Jit Lal is owner in possession of the suit house for 30 years. Defendant no.1 got registered false criminal case against plaintiff's husband, who is not traceable since then. The land underneath the house had been given to plaintiff's husband in Muafi. Plaintiff's husband raised construction on it after getting building plan sanctioned from Municipality. Defendants illegally and forcibly took possession of one room out of the suit house, whereas the remaining suit house is still in possession of the plaintiff. Accordingly, plaintiff sought mandatory injunction directing the defendants to hand over vacant possession of one room in the suit house, which is in their possession. The plaintiff also claimed permanent injunction restraining the defendants from dispossessing the plaintiff from the remaining portion of the suit house. Defendants broadly controverted the plaint averments. It was pleaded that neither plaintiff is owner of the suit house nor her husband has any concern with it. It was pleaded that after death of Amar Singh – husband of defendant no.1, defendant no.1 married with plaintiff's husband Jit Lal by Chadar Andazi. Defendants claimed to be owners in possession of the suit house. Learned Civil Judge (Junior Division), Kapurthala, vide R. S. A. No. 2243 of 2011 (O&M) 3 judgment and decree dated 15.10.2008, dismissed the plaintiff's suit. However, first appeal preferred by plaintiff has been partly allowed by learned Additional District Judge, Kapurthala, vide judgment and decree dated 17.09.2010, and thereby, plaintiff's suit has been decreed partly regarding relief of permanent injunction, whereas the suit remains dismissed qua relief of mandatory injunction for one room of the suit house. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that plaintiff has not led any evidence to depict that she is owner or in possession of suit house or any part thereof. The contention is completely misconceived and untenable. Lower appellate court has observed in paragraph 16 of its judgment that it is the case of defendant no.1 (appellant herein) herself that presently, she is in possession of only one room in the suit house, whereas plaintiff and her husband occupied the remaining suit house. In view of this admission of defendant no.1-appellant herself, it is established that plaintiff is in possession of the remaining suit house except one room, which is admittedly in possession of defendant no.1-appellant. Learned counsel for the appellant does not controvert the factual position noticed by the lower appellate court in paragraph 16 of its judgment. In view of this admitted position, plaintiff's suit has been rightly decreed for R. S. A. No. 2243 of 2011 (O&M) 4 permanent injunction because defendant no.1-appellant has no right to dispossess the plaintiff from the property, which is in possession of the plaintiff. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. In fact, even no question of fact, regarding possession of parties over different portions of the suit house i.e. one room in possession of defendant no.1 and the remaining suit house being in possession of the plaintiff, arises for adjudication in this second appeal and in view of admitted factual position regarding possession as aforesaid, plaintiff's suit has been rightly decreed partly for the relief of permanent injunction. The appeal being meritless is accordingly dismissed in limine. May 20, 2011 ( L. N. MITTAL ) monika JUDGE