RSA No. 4068 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4068 of 2002 Decided on :03-03-2009 Har Sukh ....Appellant VERSUS Lakshmi Chand ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Amit Jain, Advocate for the appellant Mr. Sanjay Vij, Advocate for the respondent MAHESH GROVER, J This is plaintiff's second appeal directed against the judgements of the learned Trial Court dated 13.1.2001 and that of the First Appellate Court dated 28.8.2002. The plaintiff-appellant filed a suit for permanent injunction seeking to restrain the respondent from raising any construction on the disputed property by alleging that the land is joint between all the co-sharers which has not been partitioned and that the respondent cannot raise any construction to the detriment of other co-sharers. The respondent who was on notice denied all the allegations and pleaded that there was oral partition between the parties and the land had been purchased from Gopi, who was the original vendor and who in turn was in the settled possession of his property. The parties went to trial on the following issues:- 1. Whether the plaintiff is co-owner of the suit property and the RSA No. 4068 of 2002 2 suit land has not been partitioned so far ? OPP. 1(A) If issue no.1 is proved, whether the plaintiff is entitled to the relief of permanent injunction? OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 4. Whether the suit is bad on account of non-joining of necessary parties?OPD. 5. Relief. On appraisal of the evidence before them, both the Courts came to the conclusion that the respondent was in settled possession of his share which he has purchased from Gopi and dismissed the suit of the plaintiff- appellant. In Regular Second Appeal, learned counsel for the appellant has based his contentions broadly on the averments that he made in the plaint to contend that the respondent being a co-sharer cannot raise any construction to his detriment. On the other hand, learned counsel for the respondent has referred to the statement of the plaintiff himself recorded during the course of proceedings wherein he has admitted the factum of construction having been raised before the filing of the suit and also referred to his admission that Gopi the vendor from whom the interest was derived by the respondent was in settled possession of land which he has sold and that all co-sharers are cultivating their exclusive shares. On the strength of this, learned counsel for the respondent RSA No. 4068 of 2002 3 contended that once settled possession is proved then the respondent was very well within his rights to raise construction and it was raised prior to the filing of the suit. Reliance was placed on decisions of this Court in cases titled as 'Bachan Singh versus Swaran Singh' 2000(3) CCC 2 (P&H) and 'M/s A.G.Enterprises versus State of Punjab and others' 2007(4) PLR 522. I have heard learned counsel for the parties and have perused the impugned judgments. In this case, testimony of PW2, the plaintiff-appellant is relevant who himself has candidly admitted the possession of the respondent to be exclusive. Not only this, he has admitted that the possession of vendor Gopi was exclusive and was in lieu of the land which was given by Gopi to him and subsequently sold to the respondent. He admitted that he was cultivating some other land exclusively implying thereby a partition based on the conduct of the parties and reflecting exclusive possession of each of the parties. In this view of the matter, the contention of the learned counsel for the appellant necessarily has to be repelled and it is to be held that the findings of both the Courts below can neither be termed to be perverse nor erroneous so as to warrant any interference in regular second appeal. No substantial question of law has been shown to have arisen in the present appeal and the same being devoid of any merit is hereby dismissed. March 3, 2009 (Mahesh Grover) rekha Judge