Regular Second Appeal No. 1349 of 2011 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 1349 of 2011 (O&M) Date of Decision: 21.9.2011 Vinod Kumar ... Appellant Versus Sawinder Singh and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arun Abrol, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 3776-C of 2011 For the reasons stated in the application, the same is allowed. Delay of three days in filing the appeal is condoned. Regular Second Appeal No. 1349 of 2011 The present regular second appeal has been filed to assail the judgments of both the Courts below, whereby the suit, filed by the appellant/plaintiff, was dismissed and permanent injunction, as prayed for, was not granted in his favour. Briefly stated, the appellant/plaintiff had filed a suit for permanent injunction praying that the defendants/respondents be restrained from encroaching upon and making any type of construction Regular Second Appeal No. 1349 of 2011 (O&M) 2 over his plot measuring 9 marlas comprised in Rectangle No. 34, Killa No. 22/1, Hadbast No. 339, situated at village Naibpur, Tehsil and District Gurdaspur. I have perused the judgments rendered by both the Courts below and have heard Mr. Arun Abrol, Advocate, appearing for the appellant/plaintiff. It is not disputed that the plaintiff purchased the plot from one Pawan Kumar, who had purchased it from Ajaib Singh. The said Ajaib Singh had purchased the plot in question from its original owner Hardev Singh, whereas defendant No.1-Sawinder Singh had purchased this plot from Smt. Dhan Kaur. Hardev Singh and Dhan Kaur were co-sharers in the demised plot and are having a joint khata in respect of Rectangle No. 34, Killa No. 22/1 and 22/2. It is also an admitted fact that the land was not partitioned between Hardev Singh and Smt. Dhan Kaur from whom the plaintiff and defendant No.1-Sawinder Singh derived their title and ownership. Therefore, the following findings, given by the trial Court, are unassailable:- “15. PW-8 Vinod Kumar while appearing in the witness box has also admitted that total killa No. 22/1 of Rect. No. 34 is measuring 4 kanals 12 marlas and that he has derived his title from one Hardev Singh who was the original owner in the same. Dhan Kaur from whom the defendant also derived his title is also the original owner to the extent of 1/5 share in the same and therefore, the plaintiff cannot claim his exclusive possession over Regular Second Appeal No. 1349 of 2011 (O&M) 3 any 9 marlas of land. The remedy available with the plaintiff is to take the appropriate steps to get the land partitioned. All the sale deeds produced on file by the plaintiff i.e. Ex.P-1 to Ex.P3, are not questioned in this case because this Court is only confined to assess the possession and since the land is still joint in which the plaintiff as well as the defendant is also a co-sharer, the remedy available with the plaintiff is to move in for partition of the suit land. 16. If the plaintiff is relying upon any mutation No. 3295 sanctioned in his favour, the copy of which has been placed on file as Mark A, it also does not show that the plaintiff has become owner in possession of some particular portion, rather, it has come up that the plaintiff Vinod Kumar has become joint owner in joint possession to the extent of 9/92 share in killa No. 22/1 whereas the remaining land to the extent of 83/92 share is belonging to the remaining co-sharer. Documentarily the plaintiff has failed to prove his possession over any portion of the joint land and therefore, he fails to prove this issue. 17. Any evidence referred by the defendant to controvert the allegations of the plaintiff, again goes to show that the defendant No.1 Sawinder Singh is Regular Second Appeal No. 1349 of 2011 (O&M) 4 also a co-sharer in the joint land and that he is also having no possession over any particular portion of the land. In this eventuality, course lying with either of the party is to get the joint land partitioned between the vendors, vendees and the remaining co-sharer in Killa No. 22/1 and 22/2 of Rect. No. 34. Since the plaintiff failed to prove his exclusive possession, so there cannot be said to be any apprehension from the defendant for his dispossession.” Furthermore, the lower Appellate Court has relied upon the report Ex.P3/A, submitted by PW.5 Muni Lal, Local Commissioner, to hold that the suit property requires partition. The Court held that once the Local Commissioner had suggested partition, it was wrong on his part to say that the appellant/plaintiff is in possession of the suit land. Whether the plaintiff was in possession of a specific portion of the plot in the joint khata or not, is a question of fact. Both the Courts below, after appreciating the evidence led by the parties, have answered this question against the appellant/plaintiff. Since the concurrent finding of fact has been given that the appellant/plaintiff is a co-sharer in the joint khata and is not in possession of a specific portion, which can be described as a plot, this Court will be hesitant to cause interference especially when the appellant/plaintiff has a remedy to seek partition of the joint khata and get his share determined by metes and bounds. As a result of above discussion, the present appeal is hereby dismissed especially when learned counsel for the appellant/plaintiff has Regular Second Appeal No. 1349 of 2011 (O&M) 5 failed to formulate any question of law, much less a substantial one, which may warrant interference of this Court. (Kanwaljit Singh Ahluwalia) Judge September 21, 2011 “DK”