Regular Second Appeal No. 2066 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2066 of 2010 Date of decision : February 25, 2011 Tilak Raj ....Appellant versus Sat Pal ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RS Chauhan, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Tilak Raj having failed in both the courts below has filed the instant second appeal. Respondent plaintiff Sat Pal filed suit against defendant- appellant alleging that plaintiff's wife Ram Lubhai was co-owner in suit land measuring 1 kanal 19 marlas comprised of khasra no. 743, 744. The said joint land was partitioned in suit no. 238 of 1990 decided on 30.7.1991. Thereafter she sold suit property comprising of a shop, a khola and open site as described in the plaint and depicted in the site plan to the plaintiff vide registered sale deed dated 29.4.1994 and since then the plaintiff is owner in possession of the suit property. Since defendant threatened to dispossess Regular Second Appeal No. 2066 of 2010 -2- the plaintiff therefrom forcibly, the plaintiff sought permanent injunction restraining the defendant from doing so. The defendant broadly denied plaint allegations and inter alia, pleaded that one Ram Lubhaya being owner in possession of one shop in dispute sold the same to defendant's wife vide sale deed dated 12.3.1982. Similarly adjoining shop in the shape of khola was purchased by defendant's wife Pushpa Devi from previous owner Tarsem Singh vide sale deed dated 20.4.1982. The aforesaid two properties purchased by defendant's wife extended upto Dhaki road on the northern side and she is in actual possession thereof. The plaintiff has no right, title or interest therein. Various other pleas were also raised. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 17.9.2001 decreed the plaintiff's suit restraining the defendant from forcibly dispossessing the plaintiff from the suit property. First appeal preferred by the defendant has been dismissed by learned Additional District Judge (Adhoc) Fast Track Court, Gurdaspur vide judgment and decree dated 22.7.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In suit filed by plaintiff's wife for partition of joint land measuring 1 kanal 19 marlas, preliminary decree of partition was passed but final decree of partition was never passed and therefore, it has been rightly held by both the courts below that the said joint land has not yet been finally Regular Second Appeal No. 2066 of 2010 -3- partitioned and continue to be joint. Both parties have, however, pleaded having purchased specific properties out of the total joint land. It would depict that the co-sharers were in exclusive possession of different portions of the joint land under some mutual arrangement. The plaintiff has proved the sale deed executed in his favour by his wife co-sharer regarding the suit property. The defendant has proved two sale deeds executed in favour of his wife. However, the said two sale deeds have not been found to be linked with the suit property. Khasra numbers of the land have not been mentioned in the said sale deeds. On the other hand, sale deed of the plaintiff is proved to be relating to the suit property. In these circumstances, concurrent finding of the courts below that the plaintiff is in possession of the suit property cannot be said to be perverse or illegal so as to call for interference in second appeal. The said finding is not based on misreading or misappreciation of evidence. It is, thus, proved that plaintiff is in exclusive possession of the suit property. However, his possession is as co-sharer because as already noticed, the joint land has not yet been partitioned. The suit property is only a part of the joint land. Plaintiff's exclusive possession over the suit property which is part of joint land cannot be disturbed even by any other co-sharer except in due course of law i.e. by seeking partition. Contention of counsel for the appellant that injunction could not be granted against the defendant as defendant's wife is co-sharer in the joint land cannot be accepted because if co-sharers under some mutual arrangement are in exclusive possession of different specific portions of the joint land, the said Regular Second Appeal No. 2066 of 2010 -4- possession cannot be disturbed even by any other co-sharer except in due course of law i.e. by seeking partition. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) February 25, 2011 Judge 'dalbir'