Regular Second Appeal No. 1529 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1529 OF 2007 Date of Order: November , 2009 Sushil Chand and another ....Appellants Versus Rajiv ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellants. Mr. A.S.Virk, Advocate for respondent. RAJIVE BHALLA, J. The appellants challenge judgments and decrees dated 07.04.2005 and 23.10.2006, passed by the Civil Judge (Junior Division), Gohana and the District Judge, Sonipat, dismissing their suit and their appeal, respectively. The plaintiffs/appellants filed a suit praying that the defendant/respondent be restrained from raising any construction over the suit land depicted by the letters ABCDEF. The appellants pleaded that they are exclusive owners in possession of the suit land. Civil Suit No.549 titled as Satish Kumar and others v. Harbans Lal, regarding the suit land was decreed on 11.11.1993 in their favour. The appeal filed by Harbans Lal etc. was dismissed on 03.08.1995. Regular Second Appeal No. 1529 OF 2007 -2- The respondent has started illegal construction of a wall and should, therefore, be directed to remove the wall and should also be restrained from interfering with the possession of the appellants. The respondent filed a written statement pleading that the appellants are neither owners nor in possession of the suit land. The judgments and decrees dated 11.11.1993 and 03.08.1995 do not bind him as he was not a party. Pursuant to an oral partition of khasra no.405, the suit land fell to the share of Tek Chand the respondent's grand father who constructed a house and a gher. On account of floods, the house and the gher have collapsed and the respondent is merely re-constructing the house. It would be necessary to mention here that though the appellants did not plead ownership on the basis of an exchange deed, but during their evidence they deposed that they received the suit land from one Karan Singh, in exchange of 14 kanals and 10 marlas by way of registered exchange deed executed on 17.09.1968 and registered on 27.09.1968. The trial court, after considering the pleadings, the evidence adduced and the arguments addressed, dismissed the suit by holding that the exchange deed could not be considered, in the absence of pleadings. It was further held that even if the exchange deed is taken into consideration, the revenue excerpt, prepared by the patwari, reveals that Karan Singh was owner of 14 marlas, out of khasra no.405. The appellants, therefore, could not claim exclusive title with respect to the suit land. It was also held that the exchange deed is silent as to the boundaries and area of the exchanged land. It was further held that as respondent is in Regular Second Appeal No. 1529 OF 2007 -3- possession and has also raised construction, he could not be restrained from raising any further construction. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. Vide judgment and decree dated 23.10.2006, the District Judge, Sonipat, dismissed the appeal. The first appellate court apart from affirming the findings recorded by the trial court, recorded a finding that boundaries of the suit land and the land exchanged with Karan Singh are different. The first appellate court held that khasra no.405 has been partitioned but not by metes and bounds and though the appellants are co-owners, they cannot be granted an injunction as the respondent has already constructed a room and a boundary wall. The only argument raised, by counsel for the appellants, is that as the first appellate court has held that parties are co-sharers, the respondent should be restrained from raising any construction. It is submitted that a co-sharer in possession cannot change the nature of the property as by raising construction he asserts exclusive, possessory and proprietary title to the exclusion of other co-sharers. As admittedly the respondent has raised construction, the appeal should be allowed and the respondent should be restrained from raising any further construction over the suit property. Counsel for the respondent, on the other hand, submits that admittedly the respondent is in possession of the suit land. The question whether the parties are co-sharers or not is entirely irrelevant. As per the findings recorded by the courts below, the suit land fell to the share of the respondent's grand father who constructed a house and a gher. The house and the gher collapsed Regular Second Appeal No. 1529 OF 2007 -4- during floods. The respondent is merely re-constructing the collapsed structure. It is further submitted that the appellants claim ownership on the basis of exchange deed from Karan Singh. As per the revenue excerpt, Karan Singh was only entitled to 14 marlas. It is further submitted that even if the appellants are co-sharers, a fact that the respondent denies, one co-sharer cannot restrain another from enjoying the property in his possession. I have heard counsel for the parties, perused the impugned judgments, and considered the arguments raised by counsel for the parties but express my inability to hold that any substantial question of law arises for adjudication or that the courts below have committed any error as would require interference by this Court. The appellants filed a suit for permanent injunction to restrain the respondent from interfering in their possession and in addition, pleaded that the respondent be directed to remove the room and the boundary wall. It is, therefore, apparent that the suit as framed contains an admission that the respondent is in possession. The courts below, therefore, rightly rejected the prayer for grant of permanent injunction. The plea of ownership based upon the exchange deed does not find mention in the plaint. Despite this legal impediment, the courts below considered the exchange deed and held that as per revenue excerpts , Karan Singh was owner of 14 marlas in Khasra No.405 and, therefore, the appellants' claim that they received 2 kanals and 8 marlas in exchange was factually incorrect. The arguments raised by counsel for the appellants that as the first appellate court has held that parties are co-sharers, the Regular Second Appeal No. 1529 OF 2007 -5- respondent should be restrained from raising any further construction over the suit land, cannot be accepted. The respondent is already in possession and has already raised construction, a fact pleaded and admitted by the appellants. A co-sharer is entitled to enjoy property in his possession, so long as he does not assert exclusive title. The plea that the respondent should be restrained from raising any further construction, therefore, does not merit consideration. No other point has been urged or pressed. In view of what has been stated hereinabove, as the impugned judgments and decrees do not suffer from any error and as no question of law, much less a substantial question of law, arises for consideration, the appeal is dismissed, with no order as to costs. November , 2009 (RAJIVE BHALLA) nt JUDGE