IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.519 of 1999 1. Lal Bahadur Pandit husband of deceased Smt.Ramsakhi Devi 2. Vishnudeo Pandit adopted son of deceased Smt.Ramsakhi Devi Both residents of village Rani Taluke, Khemkaranpur Tola Narapur, Pergana Akhtiarpur, P.S. and P.O.- Bachwara, District Begusarai. ……..Plaintiffs-Respondents 1st party-Appellants. Versus 1. Suraj Das son of Late Basudeo Das 2. Sri Ranjan Das 3. Sri Radhey Das 4. Sri Santa Das 5. Sri Luttan Das All sons of Suraj Das 6. Sri Dharamdeo Pandit 7. Sri Brahamdeo Pandit Sons of Durbij Pandit All residents of village Rani Taluke Khemkaranpur Tola Narepur, P.S. and P.O. Bachwara, District Begusarai. …….Defendants 1st party-Appellants- Respondents 1st set. 8. Paro Devi wife of Dhaneshwar Pandit, resident of village Rani Taluke Khemnaranpur Tola Narepur pergana Akhtarpur, P.S. and P.O. Bachawara, District Begusarai. 9. Parnati Devi wife of Isho Pandit, resident of village Bajipur Subdivision and District Begusarai. 10. Janki Devi wife of Shri Pandit, resident of village Ayodhya, P.S. Teghra, Subdivision and District Begusarai. 11. Fudan Pandit 12. Ramashish Pandit Sons of Dularia Devi daughter of Mossomat Sukhia widow of Jalak Pandit, residents of village Rani Tola Narepur Mahal, Khemkaranpur Pergana Akhtiarpur, Post office and P.S. Bachwara, Subdivision and District Begusarai. …….Defendants 2nd party-Respondents 2nd party- Respondents 2nd set. For the appellants : Mr. Kamal Nayan Choubey, Sr. Advocate with M/s Ambuj Nayan Choudbey and Siddharth Harsh, Advocates. For respondent nos. 1 to 7 : M/s Dronacharya and Kaushal Kumar, Advocates. 2 For respondent nos. 8 to 12 : None. ----------- 13/ 15.04.2010 Heard learned counsel for the appellants and learned counsel for respondent nos.1 to 7. 2. This second appeal has been filed on behalf of the plaintiffs-respondent 1st party-appellants challenging the judgment and decree of the court of appeal below by which the judgment and decree of the trial court was reversed. 3. The matter arises out of Title Suit No.96 of 1981 which was filed by the original plaintiff-appellant only for perpetual injunction against defendants 1st party restraining them from creating any sort of interference with the possession of the plaintiff over the suit land detailed in Schedule-I at the foot of the plaint. The aforesaid suit was decreed and defendants 1st party was permanently restrained from creating any sort of interference with the possession of the plaintiff over the suit land detailed in Schedule-I at the foot of the plaint except plot nos.305 and 306. 4. Against the aforesaid judgment and decree of the trial court, defendants 1st party filed Title Appeal No.10 of 1986 which was allowed on contest by the Additional District Judge-III, Begusarai vide his judgment and decree dated 27.09.1999 setting aside the judgment and decree of the trial court and rejecting the claim and suit of the plaintiff. Against the aforesaid judgment and decree of the court of appeal below the instant second appeal has 3 been filed. 5. Learned counsel for the appellants vehemently challenges the aforesaid judgment and decree of the lower appellate court on the ground that it had wrongly held that the suit for perpetual injunction was not maintainable under section 34 of the Specific Relief Act 1963, although the law is well settled that such suit is maintainable as per the decision of the Apex Court in case of Walter Louis Franklin vs. George Singh, reported in 1996(4) Cur CC 297 (SC). Learned counsel for respondent 1st set contests the said claim of the appellants. 6. After hearing the arguments of the parties and perusing the records, including the impugned judgments and decree of the courts below, it is quite apparent that the trial court had not considered the pleadings and evidence in detail and only on the basis of statement of a few witnesses had concluded that plaintiff had got her possession over the suit property simply because the plaintiff was a co-sharer to the extent of 1/4th share. It is quite apparent that simply being a co-sharer it cannot be held that the plaintiff was in possession of any specific portion of the ancestral property and for that onus was squarely upon the plaintiff to prove that she was in exclusive possession of the suit land by consistent and proper evidence in which she had miserably failed. 7. The plaintiff was relying upon a report of Karmchari with the recommendation of Circle Inspector that the plaintiff had got particular areas of land in her possession, but that 4 was definitely not conclusive evidence of the possession of the plaintiff over the said portion of the land. Furthermore, Raiyati Parcha (Ext.9) standing in the name of Sukhiya and Jhumak cannot be relied upon in view of the specific entries in the Survey Khatian. Neither the trial court had discussed nor the plaintiff had produced any conclusive evidence that the suit property exclusively belonged to and was in possession of the plaintiff. Hence, there was no occasion for the court below to allow the relief of perpetual injunction which amounted to debarring other co-sharers, even if they were in possession thereof from claiming the said property rather they would be obliged to surrender possession thereof to the plaintiff. 8. Furthermore, the suit being merely for perpetual injunction the trial court should not have ignored order dated 01.05.1981 passed in Case No.437 M/1975 (Ext.Q) in which it was specifically mentioned that the land under proceeding formed part of plot no.323 which also is one of the suit plots. In the said circumstances and considering the specific claim of the plaintiff it is quite apparent that the suit was not maintainable merely for injunction and it was seriously hit by provision of section 34 of the Specific Relief Act. 9. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgment and decree of the court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is 5 accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )