R.S.A.No. 3793 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3793 of 2007 (O&M) Date of decision: 8.2.2011 Ram Phool and others ......Appellants Versus Ram Chander and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vikram Singh, Advocate for the appellants. None for the respondents. **** SABINA, J. Plaintiff-respondent No.1 had filed a suit for permanent injunction. The case of the plaintiff, in brief, was that the plaintiff and proforma defendants were owners in joint possession of Gair Mumkin Gait situated within the abadi deh of village Khod marked with letters ABCD in the site plan pointed as under:- East : Plot of Narain Shadh R.S.A.No. 3793 of 2007 (O&M) 2 West: Remaining portion of land of defendants North : Johar, Shamlat deh South : Rasta Aam A passage measuring 7 ½” wide existed towards the South of the gait marked with letters DEFG. The said passage was the only available passage to the plaintiff to reach his property. The gait was purchased by the father of the plaintiff from the fore-fathers of defendants No.1 and 2 vide sale deed dated 15.12.1956. The passage was duly described in the sale deed. Defendants No.1 and 2 were threatening to encroach upon the passage. Hence, the suit was filed by the plaintiff. Defendants No.1 and 2, in their written statement, averred that defendant No.1 had raised a boundary wall starting from his Eastern side towards Northern side adjoining boundary of 'Johar' then towards Western side on the boundary of 'Johar' and then towards Southern side. No objection was raised by the plaintiff at the time of construction of the boundary wall in the year 1975. Plaintiff had already sold his share out of the joint property to Ved Singh who had wrongly shown the plot as his own property. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of injunction as prayed for?OPP. R.S.A.No. 3793 of 2007 (O&M) 3 2. Whether the plaintiff has no locus standi to file the present suit?OPR. 3. Whether the suit is not maintainable in the present form?OPD. 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit?OPR. 5. Whether the suit is bad for non joinder and mis- joinder of necessary parties? OPD 6. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 17.11.2006. Aggrieved by the same, plaintiff preferred an appeal and the same was allowed by Additional District Judge, Gurgaon vide judgment and decree dated 3.10.2007. Consequently, suit of the plaintiff was decreed. Hence, the present appeal by defendants No.1 and 2. The substantial questions of law that arise in this appeal are as to whether the findings of the first Appellate Court are perverse and contrary to the facts on record and whether the first Appellate Court has ignored the material evidence on record. In the present case, the plaintiff had filed a suit for permanent injunction alleging that he was owner in joint possession of the suit property along with his brothers defendants No.3 to 5. however, it was established on record by defendants No.1 and 2 that the plaintiff had already sold more than his share out of the suit R.S.A.No. 3793 of 2007 (O&M) 4 property to Ved Singh vide sale deed dated 18.6.1990. Hence, the plaintiff had no interest left in the suit property and the suit filed by the plaintiff was not maintainable. Admittedly, plaintiff sold the plot measuring 13' x 39' to Ved Singh on the Eastern side vide sale deed dated 18.6.1990. Father of the plaintiff had purchased the plot from the fore-fathers of defendants No.1 and 2 vide sale deed dated 15.12.1956. After the death of Baldev Parshad, plaintiff and his brothers inherited the suit property. As per the plaintiff's case, the plot purchased by his father measured 51'x36'. Plaintiff has already sold the plot measuring 13' x 39' out of the said property. It is not the case of the plaintiff that the entire plot purchased by his father had come to his share in some family settlement . Rather the case of the plaintiff himself is that he was joint owner in possession of the suit property along with his brothers. It appears that the suit has been filed by the plaintiff just to harass defendants No.1 and 2. The brothers of the plaintiff, who have not sold their share out of the plot purchased by their father, have not filed any suit nor the proforma defendants got themselves transposed as plaintiffs. The proforma defendants did not even file appeal against the judgment and decree of the trial Court. In these circumstances, the findings of the first Appellate Court are perverse and against the material evidence on record. The substantial questions of law stand answered accordingly. Hence, the present appeal is allowed. The impugned R.S.A.No. 3793 of 2007 (O&M) 5 judgment and decree of the first Appellate Court are set aside. Consequently, the suit of the plaintiff is dismissed. (SABINA) JUDGE February 08, 2011 anita