R.S.A. No. 376 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 376 of 2007 (O&M) Date of decision: 21.1.2009 Silak Ram and another ....Appellants Versus M/s Amba Promoters and Developers and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Kulvir Narwal, Advocate, for the appellants. Mr. H.S. Gill, Sr. Advocate, with Mr. R.K. Dhiman, Advocate, for respondent No.1. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 11.12.2006 passed by the learned lower appellate Court vide which the decree passed by the learned trial Court was ordered to be set aside and the suit filed by the plaintiffs has been ordered to be dismissed in toto. The plaintiff/appellants brought a suit for permanent injunction against M/s Amba Promoters and Builders and others on the plea that the plaintiffs were proprietors of Pana Soth along with defendants No. 2 to 18 who were co-sharers in the land detailed in the suit. Plaintiffs claimed that after the consolidation in the village, co- sharers of Pana Soth of village Kheri Sadh decided to bring the suit land under cultivation, which was earlier banjar and uncultivable. Every co- R.S.A. No. 376 of 2007 (O&M) -2- sharer had right to bring under cultivation any portion of the land, and to remain in possession perpetually to the exclusion of all other co-sharers. The plaintiffs claimed that their father brought portion of the land under his cultivation and made the land cultivable after putting lot of physical labour and capital. Plaintiff claimed to be in cultivating possession of the suit land since 1956 to the exclusion of all other co- sharers. It was claimed that the possession of the plaintiffs over the land in their possession was open, exclusive, hostile to knowledge of defendants No. 2 to 18 and other co-sharers also. The possession matured into ownership by adverse possession. It was further the case of the plaintiffs that defendants No. 2 to 18 had entered into an agreement with defendant No. 1 to sell their land and were trying to dispossess the plaintiffs forcibly. The suit was contested wherein the plaintiffs being proprietors of Pana Soth was admitted. However, it was denied that there was any agreement between the co-sharers to bring the suit land under cultivation. It was also denied that the father of the plaintiffs had brought under cultivation the suit land or that he remained in exclusive possession of any portion of the suit land. The plea of adverse possession was denied. It was claimed that the plaintiffs were merely co- sharers in the suit land and their possession was joint with other co- sharers. The revenue entry was challenged in collusion with the revenue authorities. Defendant No. 1 took a stand that the share has been sold by defendants No. 2 to 18 in its favour and it is defendant No. 1 who is in actual physical possession of the land. It was also pleaded that the suit R.S.A. No. 376 of 2007 (O&M) -3- was not maintainable. The learned trial Court did not accept the plea of adverse possession by holding that declaration to have become owner by adverse possesion was not available to the plaintiffs. However, the learned trial Court held that the part of property was in possession of the plaintiffs, in which they were held to be in exclusive possession, i.e. land comprised in khewat No. 84/65 and 95 and killa No. 15/22 (12-4) and thus, a decree of injunction qua this land was passed. With respect to other killa numbers the suit was ordered to be dismissed. The learned lower appellate Court reversed the judgment and decree passed by the learned trial Court holding that the suit as framed was not competent as the remedy of partition was available to the plaintiffs. The learned Court observed that as the alternative remedy was available, injunction could not be granted. It was also observed that no revenue record was produced in support of plea by the plaintiff/appellants. The learned counsel appearing on behalf of the appellants contends that the learned lower appellate Court was in error in reversing the findings recorded by the learned trial Court by mis-reading the evidence brought on record as revenue record was produced by way of Ex. P-1 to P-5 showing exclusive possession of the plaintiffs. Notice of the appeal was issued. The learned counsel appearing on behalf of respondent No. 1 has categorically stated that respondent No.1 will not dispossess from the land in its exclusive possession except by due process of law, if need R.S.A. No. 376 of 2007 (O&M) -4- arises. The learned counsel for the respondents also contends that the appeal has been rendered infructuous as during the pendency of the civil litigation, land in dispute has been partitioned and the possession taken by co-sharer, if need so arises the possession can be taken by parties by enforcing order of partition. The stand taken is that the possession of the plaintiff/appellants would only be disturbed with due process of law, if necessity arises. In view of the positive stand taken by the learned counsel for respondent No. 1, learned counsel for the appellants does not press this appeal. Dismissed as not pressed. (Vinod K. Sharma) Judge January 21, 2009 R.S.