R.S.A. No. 180 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 180 of 2009 Date of decision:29.07.2009 Karnail Singh and others ......Appellants Versus Navjot Singh and others .....Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Vipin Mahajan, Advocate for the appellants. RAJIVE BHALLA, J. The appellants challenge the judgment and decree dated 25.09.2008, passed by the Additional District Judge, Gurdaspur, accepting the appeal filed by the respondents, by setting aside the judgment and decree dated 19.12.2002, passed by the Civil Judge (Junior Division), Gurdaspur and as a result, decreeing the suit filed by the respondents. The plaintiff-respondents filed a suit for grant of declaration that they are owners in possession of a suit land by virtue of a registered sale deed dated 19.09.1994, executed by Gian Singh son of Ujjagar Singh, for a consideration of Rs. 83,000/-. They pleaded that the defendants-appellants have no right, title or interest in a suit land but threaten to dispossess the plaintiff-respondents. Upon notice, the defendants-appellants filed a written R.S.A. No. 180 of 2009 2 statement raising a preliminary objection, that the suit is barred by the principle of res-judicata, by Section 47, by Order 21 Rule 58 of the Code of Civil Procedure as also under Section 52 of the Transfer of Property Act. On merits, the appellants urged that Gian Singh sold 5 kanals of land situated in Rectangle No. 12, Killa No. 22/2, for a consideration of Rs. 12,500/-, to the appellants vide sale deed dated 31.10.1984, . After some time land measuring 1 kanal and 2 marlas was allotted to one Gopal Singh, out of this land, being evacuee property. As the appellants were deprived of this portion of the land, they filed a suit for possession of land measuring 5 kanals. Vide judgment and decree dated 5.08.1989, the suit was partly decreed and it was held that the appellants are entitled to ownership and possession of 1 kanal and 2 marlas of land. The appellants were also deprived of the remaining 3 kanals 18 marlas and therefore, filed another suit for possession of the remaining 3 kanals and 19 marlas out of the suit land which was decreed by Sub Judge Ist Class, Gurdaspur, on 1.06.1995, against Gian Singh, the predecessor's in interest of the plaintiff-respondents. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that as the respondents have failed to disclose the earlier litigation, they were not entitled to any relief. It was also held that the execution of the sale deed by Gian Singh does not confer any right on the plaintiffs to file the suit for declaration of ownership. R.S.A. No. 180 of 2009 3 Aggrieved by the aforementioned judgment and decree, the respondents filed an appeal. The Additional District Judge, Gurdaspur, vide judgment and decree dated 25.09.2008, partly allowed the appeal by holding that the respondents are entitled to the declaration that they are owners in possession of land measuring 8 kanals comprised in khasra no. 14 and 3 kanals out of a part of khasra no. 7, excluding land measuring 3 Kanals 18 marlas already decreed in favour of the appellants. It was held that the respondents are also entitled to the grant of a permanent injunction to restrain the appellants from interfering in their peaceful possession over this property. Counsel for the appellants submits that the first appellate court erred while partly allowing the appeal as it has failed to take into consideration the failure of the respondents to disclose the previous litigation. It is further argued that as the first appellate court has held that parties are co-sharers, no injunction could have been granted in favour of the respondents. I have heard counsel for the appellants, considered the judgments and decrees passed by the courts below and find no error in the judgment and decree passed by the first appellate court, as would raise a substantial question of law. The appellants' claim for possession of 3 kanals and 18 marlas, as decreed in the earlier suit, has not been disturbed and no injunction has been granted with respect to this land. As a result, the first appellate court did not commit any error in granting a declaration with respect to the balance land or an R.S.A. No. 180 of 2009 4 injunction to the respondents to protect their possession. In view of what has been stated hereinabove, as no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 29th July, 2009 SKaushik