RSA No.2918 of 2010 (O&M) -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2918 of 2010 (O&M) Date of decision: July 19, 2011. Nobal & Anr. ... Appellant(s) v. Bhojraj & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri N.S. Shekhawat, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. (Oral): CM No.8705-C of 2010 For the reasons stated in the application, the same is allowed and the delay of 116 days in filing the present appeal is condoned. RSA No.2918 of 2010 The plaintiff-appellants having failed in the two courts below, have instituted the present regular second appeal. The plaintiffs filed a suit for permanent injunction praying that the defendants be restrained from taking forcible possession of the suit land which was shown in the site plan annexed with the plaint as ABCD. It was stated that plaintiff No.1 – Satbir, who died during the pendency of the suit, was in exclusive possession of the demised premises, detail and description of which was given in the plaint. Upon notice, the defendants appeared and filed their written statement. They raised many preliminary objections and further stated that RSA No.2918 of 2010 (O&M) -: 2 :- oral partition was arrived at and they are in exclusive possession of the suit property. After conclusion of the pleadings, the trial court had drawn the following issues:- 1. Whether the plaintiff is owner in possession of the suit property on the grounds as alleged? OPP 2. Whether the plaintiff is entitled to decree of permanent injunction qua the disputed property on the grounds as alleged? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is time barred? OPD 5. Whether the plaintiff is estopped by his own act and conduct? OPD 6. Whether the civil court has no jurisdiction to try this case? OPD 7. Relief. Plaintiff No.2 Pyare Lal appeared as PW2 and placed on record site plan Ex.PW2/A. The plaintiff further examined Rameshwar PW1. Defendant Bhojraj appeared as DW1. The defendants examined Rajpal Yadav draftsman as DW2, who proved site plan Ex.DW1. Bhawani Shankar was examined as DW3, Durga Parshad as DW4 and Chanderhas as DW5. Besides this, defendants had tendered various documents. The trial court had decided issue No.1 against plaintiffs and in favour of the defendants primarily on the ground that plaintiff No.1 – Satbir (deceased), through his legal representatives, who were stated to be in the exclusive possession of the suit land, have not stepped into witness box to reiterate the RSA No.2918 of 2010 (O&M) -: 3 :- pleadings made in the plaint. The courts below have held that since the specific stand was taken by plaintiff No.1 that Satbir was in exclusive possession of the suit property, it was incumbent upon them to state this fact on oath. The court further held that from the revenue record, it is evident that disputed land was part and parcel of khasra No.122. For this, reliance has been placed upon jamabandi for the year 1960-61. It was discernible from the jamabandi for the year 1938-39 that khasra number of the disputed property was 117. Jamabandi of the year 1906-07 was taken into consideration where khasra number was 78 and the Court held that the present khasra No.122 relate to khasra No.78 given in the jamabandi prior to 1960-61 and khasra No.117 reflected in jamabandi for the year 1938-39. The court further held that as per the revenue record, plaintiffs and defendants are co-sharers. A plea has been taken by defendants that long ago the parties had partitioned the suit land. The court further took into consideration the fact that the plaintiffs have denied the fact that the defendants were co-sharers and they have also denied the oral family partition. I have heard Shri N.S. Shekhawat, Counsel for the appellants. A concurrent finding of fact has been given that the revenue record depicts that the parties to the suit were co-sharers. Shri Shekhawat is unable to dislodge the observation of this Court that injunction cannot be issued against a co-sharer. Furthermore, the lower appellate court has specifically taken into consideration admission of plaintiff No.2 – Pyare Lal who admitted that the suit property is in possession of the defendant and is lying vacant at the spot. In view of the admission made by plaintiff No.2, nothing remains in the suit, therefore, the courts below have rightly not RSA No.2918 of 2010 (O&M) -: 4 :- granted any relief to the appellant-plaintiffs. At the cost of repetition, it is stated that though admission of plaintiff No.2 Pyare Lal was sufficient to deny the relief, neither plaintiff No.1 nor his legal representatives appeared to state anything to the contrary. The courts below have appreciated the evidence and have returned the finding, this Court will not tread on the path of re-appreciation and re-appraisal of the evidence. No point of law, much less substantial, has been raised before me which warrants interference of this Court. Hence, the present appeal is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 19, 2011. Judge kadyan