RSA No.4032 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4032 of 2008 Date of Decision: 8 - 8 - 2011 Phool Singh and another ....Appellants v. Amar Singh and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.N.S.Shekhawat, Advocate for the appellants. Mr.R.P.S.Ahluwalia, Advocate for the respondents. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present Regular Second Appeal has been filed by the defendants to the suit. Respondent-plaintiff Amar Singh had instituted a suit for permanent injunction praying that defendants be restrained from interfering in any manner in ownership and possession of property marked ABCDEFJ, detail and description of which has been given in head note of the plaint. The trial Court had decreed the suit and granted the relief of permanent injunction, aggrieved against which the defendants had filed an appeal. The lower Appellate Court while partly allowing the appeal, in para 11 of its judgment has held as under:- RSA No.4032 of 2008 [2] “11. It is clear that Khasra No.64 is claimed to be owned by plaintiff in view of his replication but there is no revenue record to support that plaintiff is owner in possession of khasra no.64. But in the DW1 Amar Singh defendants admits the possession of plaintiff over this property. So, plaintiff on the basis of possession, can take the injunction. However, defendants have every right to make opening in his own wall. However, the drain has already been constructed long time back and the water of bathroom is being discharged through underground pipe line and naturally in case of opening made by defendant nos.1 & 2, the plaintiff has right to obstruct the same by constructing his own wall. However, defendants cannot encroach upon the suit property as the plaintiff is in possession over the same. In view of this, findings recorded by learned trial Court is partly reversed and this issue is partly decided in favour of plaintiff and against the defendants.” Counsel for the appellant-defendants states that once the lower Appellate Court has held that there is no revenue record from which possession of the respondent-plaintiff is discernible, the Court relied upon the admission of the appellant-defendants to state that respondent-plaintiff is in possession. Counsel for the parties are in agreement that it has been wrongly recorded that admission was made by Amar Singh DW1. Rather it is stated that Amar Singh had appeared as PW4. I have also perused the judgment of the lower Appellate Court. In the concluding portion of para 10 of the judgment, it has been observed as under:- “.....However, the possession of plaintiff is proved over this portion and defendants have never raised construction over this portion despite the compromise in the year 1957.” The trial Court held that compromise of 1957 cannot be taken into RSA No.4032 of 2008 [3] consideration as no pleadings to this effect were made. Thus, the findings given by the lower Appellate Court cannot be reconciled. Hence, the present appeal is allowed. The judgment of the lower Appellate Court is set aside and the matter is remanded back to the lower appellate Court to decide the same afresh after hearing counsel for the parties. It shall decide the appeal within three months from the date of appearance of the parties. They are directed to appear before the lower Appellate Court on 30.8.2011. ( KANWALJIT SINGH AHLUWALIA ) August 8, 2011. JUDGE RC