R.S.A.No.201 of 2010 1 R.S.A.No.201 of 2010 (O&M) In the High Court of Punjab and Haryana at Chandigarh Date of decision: 8.3.2011 R.S.A.No.201 of 2010 (O&M) Ram Chander ......Appellant Versus Kundan Lal and others .......Respondents R.S.A.No.202 of 2010 (O&M) Ram Chander ......Appellant Versus Kundan Lal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Ajay Jain, Advocate, for the appellant. **** SABINA, J. Vide this judgment both these appeals will be disposed of as these have arisen out of the same suit. The plaintiffs had filed a suit for permanent injunction. The case of the plaintiffs, in brief, was that the parties R.S.A.No.201 of 2010 2 R.S.A.No.201 of 2010 (O&M) were successors in interest of Kishna. Pedigree table, as shown in para No.2 of the judgment of the trial Court is as under:- Kishna -------------------------------------------------------------------------------------------------------- | | Harchand Nand Ram | | -------------------------------------------- Mohan Lal @ Lekhu | | | Jai Dayal Mangla Ram | | | ------------------------------------ ------------------- | | | | | | | | Ram Chander Lakshmi Om Parkash Parb Gori Amar | plaintiff Narain plaintiff Lal shankar Singh | P.Def Def. Def. Def. | No.1 No.2 No.3 | | -------------------------------------------------------------------------- | | | Bhola Ram Rattan Lal Bansidhar Def.No.4 Def.No.5 Def.No.6 Plaintiffs and proforma defendants were owners in possession of the suit property. The suit land was being used by the plaintiffs and proforma defendants for tethering their cattle. A family settlement had taken place between the ancestors of the parties and Khasra No. 129 measuring 13 biswas, khasra No. 131 measuring 5 biswas 18 bighas and 18 biswas of land out of khasra No.136 measuring 5 bighas 13 biswas had come to the share of the ancestors of the plaintiffs namely Nand Ram. Remaining land bearing khasra No.136 had come to the share of ancestors of the contesting defendants namely Harchand. Defendants were threatening to raise construction over the property in dispute. R.S.A.No.201 of 2010 3 R.S.A.No.201 of 2010 (O&M) Defendants, in their written statement denied the factum of family settlement between the parties. Residential house of the contesting defendants was in existence on the Northern side of the property in dispute bearing khasra No.80 which had come to their share during consolidation. Plaintiffs and proforma defendant had no land near the property in dispute. During consolidation proceedings, Khasra No.80 measuring 1 kanal and khasra No.67 and plot No.81 had come to the share of contesting defendants. Plot No.84 which was in possession of the plaintiffs was allotted to them. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff and proforma defendant are the owner in possession of the suit property and are entitled to injunction as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4. Whether the suit is time barred ? OPD 5. Whether the plaintiff is estopped from filing the suit by his own act and conduct ? OPD 6. Whether the defendants are entitled to special costs u/s 35-A CPC ? OPD 7. Relief.” Vide judgment and decree dated 19.4.2006 trial Court dismissed the suit of the plaintiffs. The plaintiffs preferred an appeal R.S.A.No.201 of 2010 4 R.S.A.No.201 of 2010 (O&M) and the defendants preferred a cross-appeal challenging the finding given by the trial Court whereby the parties were held to be co- sharers qua the suit land. The Additional District Judge vide judgment and decree dated 27.10.2009 dismissed the appeal filed by the plaintiffs and allowed the cross-appeal filed by the defendants. Hence, the present appeal by plaintiff No.1. After hearing learned counsel for the appellant, I am of the opinion that the present appeals are devoid of any merit and deserve dismissal. Learned first Appellate Court, after appreciating the evidence led by the parties on record, given a finding of fact that plot No.84 was allotted to the plaintiffs during consolidation and plot No.80 was allotted to the defendants. In these circumstances, the parties could not be held to be co-sharers in joint possession. Admittedly, Har Chand and Nand Ram were real brothers. Nand Ram was the grand father of the plaintiffs and proforma defendants, whereas, Har Chand was grand father of contesting defendants. The appellant, while appearing in the witness box, admitted that plot No.84 was allotted to him. So far as the other witnesses examined by the plaintiffs are concerned, they could not tell the khasra number of the suit property. DW-2 Prabhu Dyal deposed that plot number allotted to them was bearing number 80 and measured 1 kanal. During consolidation, as per Ex. D-1, plot No.80 was allotted to the defendants and earlier it bore number 141 min and 156 min. Some area of khasra number 156 was included in the phirni . Plaintiffs, however, failed to prove on record that plot R.S.A.No.201 of 2010 5 R.S.A.No.201 of 2010 (O&M) No.84 had been allotted to them in lieu of earlier khasra numbers occupied by them. The plaintiffs had failed to establish that they were co-sharers in the land bearing plot No.80. No substantial question of law arises in these regular second appeals, which would warrant interference by this Court. Accordingly, the same are dismissed. (SABINA) JUDGE March 08, 2011 anita