RSA No.4675 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4675 of 2009 Date of Decision: 19.01.2010. Jagdish and another .……Appellants Versus Nafe Singh ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Madan Pal, Advocate for the appellants. L. N. MITTAL, J (ORAL) Defendants Jagdish and his wife Geeta have filed the instant second appeal. Defendants are son and daughter-in-law of plaintiff respondent-Nafe Singh. Nafe Singh filed suit for permanent injunction and mandatory injunction alleging that he is owner in possession of 1/4th share in agricultural land measuring 318 kanals 4 marlas. The plaintiff has four sons and three daughters, all married. The plaintiff gave about 550 square yards land each to his sons for constructing their separate houses out of Killa No.19/5/1 (7-16). Plaintiff's sons accordingly constructed their houses there. However, the defendants want to encroach upon the portion shown in red colour in the site plan which is owned and possessed by the plaintiff out of killa No.19/5/1. Plaintiff accordingly sought permanent injunction restraining the defendants from interfering in the possession and ownership of the plaintiff over the suit land. The plaintiff also sought mandatory injunction directing the defendants to remove bricks from the disputed red portion of Killa No.19/5/1 and also to remove the construction if any that may be raised during the pendency of the suit. Defendants in the written statement inter alia pleaded that suit RSA No.4675 of 2009 -2- property is ancestral and coparcenary property and is owned and possessed by defendant No.1, who acquired title therein by birth being coparcener. There was family settlement in which the disputed property came to the share of defendant No.1, who has constructed his residential house and cattle shed etc. Defendant No.2 being his wife is also residing with defendant No.1 in the suit property. The remaining land is owned and possessed by defendant No.1 along with his three brothers and their father i.e plaintiff. They are cultivating the same to the extent of 1/5th share each. Learned Civil Judge (Junior Division), Rohtak vide judgment and decree dated 23.10.2007, dismissed the suit of the plaintiff. However, learned Additional District Judge (Ad hoc), Fast Track Court, Rohtak vide judgment and decree dated 30.10.2009 decreed the suit and restrained the defendants from interfering in the agricultural land owned and possessed by the plaintiff and from raising construction or changing nature of the suit property shown in red colour in the site plan except in due course of law. Cross-objections preferred by the defendants were dismissed by the lower Appellate Court. Feeling aggrieved the defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The case of the defendants is based on their plea that the disputed red portion came to the share of defendant No.1 in family settlement. However, there is no cogent evidence to substantiate this plea of the defendants. Admittedly, the agricultural land in the hands of the plaintiff has not yet been partitioned because the defendants themselves have pleaded that the remaining agricultural land is owned and possessed by plaintiff and his four sons including defendant No.1. The onus was on the defendants to prove that the portion of Killa No.19/5/1 shown in red colour in the site plan annexed with the plaint had fallen to the share of RSA No.4675 of 2009 -3- defendant No.1. However, defendants have failed to discharge the said onus. Defendants have failed to prove that they are in exclusive possession of the suit property. No written family settlement has been produced nor any such settlement has been recorded in revenue record. The plaintiff has come with clean hands and alleged that he had given about 550 square yards land to each of his four sons for construction of their houses. However, the defendants are greedy and are claiming additional area to which they are not entitled to, without family settlement or partition. In the revenue record, plaintiff is recorded to be in possession of the entire land. Defendant No.1 is not even recorded as co-sharer therein nor in possession thereof. Consequently, there is no illegality in the finding of the lower appellate Court, decreeing the suit of the plaintiff. Learned counsel for the appellants could not advance any meaningful argument to assail the well-reasoned finding of the lower appellate Court. In addition thereto, no question of law much less substantial question of law arises for determination in the instant second appeal. The appellants have alleged that substantial questions of law as mentioned in paragraph 2 of the appeal arise for determination. However, the said questions are pure questions of facts and no substantial question of law arises for determination in the instant second appeal. For reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 19.01.2010 A.Kaundal