R.S.A. No. 1306 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1306 of 2008 (O&M) Date of Decision : 12.2.2009 Gian Singh .......... Appellant Versus Avtar Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. D.R. Punia, Advocate for the appellant. Mr. Arun Bakshi, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 7.1.2008 passed by the learned lower appellate Court dismissing the suit for permanent injunction filed by the plaintiff-appellant. The plaintiff brought a suit seeking permanent injunction restraining the defendant-respondent from interfering into the peaceful possession of the plaintiff and from encroaching by way of construction over the suit property as detailed in the head-note of the plaint, forcibly, illegally, except in due course of law. The plaintiff claimed that he along with his son Makhan Singh were owners in possession of the property in dispute situated in village Mudhada Kalan. It was claimed that son of the plaintiff purchased the R.S.A. No. 1306 of 2008 2 aforesaid property vide sale deed dated 9.2.2000 from Bhagtu son of Attru for an amount of Rs. 4,99,000/-. So, the plaintiff along with other co-sharers became owners and co-sharers of the land in dispute. It was claimed that the defendant was neither owner nor in possession of the suit property but wanted to take possession of the property in dispute illegally and forcibly. The suit was contested by the defendant-respondent. He raised preliminary objections. On merits, it was pleaded that Bhagtu son of Attru was the exclusive owner in possession of the land measuring 5 K-7M out of the land measuring 10K-14M bearing khasra No. 1910 and 1911, Bhagtu sold 5 Kanals to the defendant-respondent by way of registered sale deed dated 9.6.1994 for a total consideration of Rs. 60,000/-. It was claimed that possession of the land was handed over to the defendant-respondent. However, mutation was not sanctioned. The learned trial Court decreed the suit by holding the plaintiff to be entitled to permanent injunction by holding that plaintiff was in possession. In appeal, the judgment and decree passed by the learned trial Court stands reversed. The learned lower appellate Court held that there was no evidence on record to show the possession of the plaintiff over the land in dispute. It was held that admittedly plaintiff was not the owner of the property in dispute as the claim set up was on the basis of sale deed said to have been executed in favour of his son and not in favour of the plaintiff. The learned lower appellate Court reversed the finding of the learned trial Court. R.S.A. No. 1306 of 2008 3 The learned counsel for the appellant contends that this appeal raises the following substantial question of law for consideration by this Court :- Whether the judgment and decree passed by the learned lower appellate Court is result of misreading of documentary evidence placed on record and, thus, perverse ? In support of the substantial question of law the learned counsel for the appellant contends that even if the stand of the respondent-defendant was accepted that he was owner of 5 Kanals of land in pursuance to the sale deed executed in his favour by Bhagtu on 9.6.1994 still he has no right to interfere with the remaining land purchased by Makhan Singh and, therefore, the judgment and decree of the learned lower appellate Court being perverse deserves to be set aside. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The learned lower appellate Court has non-suited the appellant by holding that the appellant-plaintiff is neither owner nor in possession of the suit property and, therefore, was not entitled to maintain the suit for injunction. Otherwise, also being co-sharer the remedy available with the son of the plaintiff / appellant was to file a suit for partition rather then seeking injunction as it is settled law that a co- sharer is not entitled to seek injunction against other co-sharer unless he is proved to be in settled exclusive possession and there is likely irreparable damage to joint property. R.S.A. No. 1306 of 2008 4 The substantial question of law is answered against the appellant and it is held that the judgment and decree of the learned lower appellate Court cannot be said to be outcome of misreading of documentary and oral evidence as alleged. No merit. Dismissed. 12.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE