RSA No.69 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.69 of 2010(O&M) Date of decision: 15.1.2010 Bijender ......Appellant(s) Versus Raghbir and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Suman Jain, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) This is plaintiff's regular second appeal challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the respondents from interfering into his peaceful possession over the suit property and from dispossessing him from the same and also from raising any construction over the suit property illegally, was dismissed with costs. Briefly stated, the plaintiff-appellant filed a suit for permanent injunction against the defendants alleging that he was the owner in possession of the suit land on the basis of Will dated 21.9.1970 which was executed and got registered by Sh. Karan singh son of Jhunna, the real brother of the father of the plaintiff. After the death of said Karan Singh, the plaintiff had become owner and was in possession of the suit property exclusively. Earlier the suit property was comprised in Khasra Nos.306 and 307 situated within the revenue estate of village Thantri but due to passage of time it came within the Abadi Deh of the said village. The plaintiff was residing in the suit property openly, continuously, uninterruptedly and to the knowledge and notice of the defendants and RSA No.69 of 2010(O&M) 2 the entire village. Defendants had got no right, title or interest in the suit property in any manner. The defendants were threatening to dispossess the plaintiff from the suit property and also threatening to raise construction over the same illegally. Hence, this suit. Upon notice, the defendants (respondents) appeared and filed joint written statement raising various preliminary objections . On merits, it was denied that the plaintiff-appellant was owner in possession of the suit land and further submitted that there exists no Khasra numbers as 306 and 307. Correctness of the site plan filed by the plaintiff was also denied. It was further submitted that impugned Will dated 21.9.1970 was false, fictitious and forged document which was never executed and got registered by Sh. Karan Singh in favour of the plaintiff in respect of the suit property. It was further denied that after the death of Karan Singh, the plaintiff had become owner and in possession of the suit property and it was further submitted that the defendants were residing in the suit property since the time of their forefathers and plaintiff had got no right, title or interest in the same. Remaining averments made in the plaint were denied and prayer for dismissal of the suit was made. The trial Court dismissed the suit of the plaintiff holding that there was no evidence to prove the possession of the plaintiff over the suit land and the plaintiff had failed to prove that the suit property was the same bearing old khasra Nos.306 and 307. The trial Court further found that the ownership of the appellant was not established on the basis of the Will dated 21.9.1970 as the aforesaid Will was not proved as per the well settled principles of law and dismissed the suit. The appeal filed by the plaintiff challenging the aforesaid judgment and decree of the trial Court was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 22.9.2009. RSA No.69 of 2010(O&M) 3 Still not satisfied, the plaintiff has filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that even if title of the appellant over the land in dispute on the basis of the Will dated 21.9.1970 has not been proved yet he has a right to protect his possession against the defendants who have no title in the property in dispute and thus, the appellant is entitled to grant of permanent injunction restraining the defendants from interfering in his peaceful possession. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises in this appeal: “Whether it is necessary to prove title for obtaining permanent injunction in spite of proving possession over the suit property?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The contention raised by the appellant is without any merit as admittedly, defendant No.1 is his real brother and other defendants/respondents are family member of defendant No.1. The appellant had claimed the title over the property in dispute on the basis of Will dated 21.9.1970 executed by the original owner Karan Singh which could not be proved. Once it is the appellant's own case that the property belongs to Karan Singh then in the absence of any Will, he cannot claim any better title than the defendants in the property in dispute as both the plaintiff and defendants can claim to be co-sharers in the property in dispute on the basis of succession in the absence of any other stake holder. Once that is so, the appellant cannot claim protection of his RSA No.69 of 2010(O&M) 4 possession seeking permanent injunction restraining the defendants from interfering in his peaceful possession, defendant No.1 being the co-sharer. In view of the aforesaid, the appellant cannot claim protection of his possession against the defendant-respondents. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. January 15, 2010 (RAKESH KUMAR GARG) ps JUDGE