IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2652 of 2007 (O&M) Date of decision : 3.2.2010 Om Parkash and others ....Appellants Versus Jag Ram and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. S.K.Sharma, Advocate for the appellants. Mr.J.P.Sharma, Advocate for respondents No.1 and 2. ..... MAHESH GROVER, J. This appeal by the defendants is directed against the judgments of the learned trial Court dated 27.9.2003 and that of the first Appellate Court dated 13.3.2007. The plaintiffs/respondents No.1 and 2 filed a suit by pleading that during the consolidation proceedings the land measuring 2 Kanals 18 Marlas was allotted jointly in the names of the ancestors of respondents No.1 and 2/plaintiffs and appellants No.1 and 3 along with Ami Lal, defendant No.3. In a family settlement which took place about 25/26 years ago the partition had taken place with regard to the said land and the parties were in settled possession of their respective shares. The appellants/defendants had constructed their residential houses on their portion whereas the share of the R.S.A.No.2652 of 2007 (O&M) -2- respondents/plaintiffs was lying vacant except for some portion wherein they had also constructed their houses. A site plan was attached with the plaint which depicted the share of plaintiffs/respondents by letters ABCD and in red colour. It was further averred that when they started raising construction over the suit land and other adjoining land falling within Lal Dora, the appellant No.1 in order to harass them filed a suit for permanent injunction seeking to restrain them from raising the construction and in that suit he claimed possession of the property bearing khasra No.213/2 to be the joint property of the parties. The suit was dismissed in default. The appellants were bent upon to interfere in their peaceful possession over the land which had fallen to their share. The appellants/defendants contested the suit and pleaded that land comprised in Khasra No.213/2 measuring 2 kanals 18 marlas was allotted to the appellant/defendant No.3 and the ancestors of the respondents/plaintiffs and appellants/defendants No.1 and 2 within Lal Dora so as to constitute the entire land as one chunk. It was pleaded that the ancestors of the parties to the suit land had been owners in possession of the same land falling within Lal Dora in the family settlement. It was pleaded that Khasra No.213/2 and the other land falling in Lal Dora was divided and 1/4th share was given to the plaintiffs/respondents, 1/4th share to appellant/defendant No.3 and ½ share to Harphool, father of defendants No.1 and 2. It was pleaded that both the areas when combined together came to 16300 sq. ft. out of which southern portion measuring 4525 sq. ft. was given to the R.S.A.No.2652 of 2007 (O&M) -3- plaintiffs/respondents and 3516 sq. ft. to appellant/defendant No.3. A passage of 10 ft. wide was left out of the disputed property for the use of the appellant/defendant No.3 from north to south. Harphool was given 8200 sq. ft. area which is jointly owned and possessed by Om Parkash and Jagdish whereupon they have constructed their houses. The averments made in the plaint were denied. A counter-claim was also filed wherein it was pleaded that Khasra No.213/2 and the land falling in the Lal Dora had already been partitioned and a 10 ft. wide passage was left for the use of defendant No.3. It was pleaded that the plaintiffs had encroached upon the passage and it was prayed that the same should be left open for the use of the appellants. The parties went to trial on the following issues :- 1. Whether the plaintiffs are owners in possession of the suit property, as alleged?OPP 2. Whether the site plan filed with the plaint is correct as per the spot?OPP 2-A. Whether the land in dispute was partitioned in a manner alleged by the defendants?OPD 2-B. Whether the land situated in west of Khasra No.213/2 was also included in the said partition? OPD (both these issues framed vide order dated 5.5.2000). 3. Whether the suit of the plaintiffs is mala fide, as alleged?OPD 4. Whether the suit in the present form is not maintainable, as alleged?OPD 5. Whether the plaintiffs are estopped from filing the suit R.S.A.No.2652 of 2007 (O&M) -4- by their own act and conduct?OPD 6. Whether the plaintiffs have no cause of action to file the suit?OPD 7. Whether the defendants are entitled to special costs u/s 35-A, CPC?OPD 8. Relief. Both the courts concluded that no passage existed in the property and decreed the suit by holding that the respondents/plaintiffs were entitled to injunction as prayed for. The courts concluded the possession of the parties over the property in dispute on the basis of site plan Ex.PW5/B, relied upon by the respondents/plaintiffs. The respondents/plaintiffs were also held to be in possession of the portion which was depicted by letters ABCD in the site plans Ex.PW5/B and PW5/A. It was further concluded that there was no passage of 10 ft. as claimed by the appellants/defendants. It was determined that the land continued to be joint except for the land which was within the Lal Dora and was not a part and parcel of the suit property. The plea of the appellants was therefore negatived and it was concluded that the defendants had failed to establish that Khasra No.213/2 and the land within Lal Dora constituted one chunk which was subjected to partition. These are pure findings of fact which have been determined by the courts below. No substantial question of law arises for the consideration of this Court. Accordingly, this Court is of the opinion that it is not a fit case where the court should exercise its jurisdiction under Section 100 of the Code of Civil Procedure in entertaining the regular second .S.A.No.2652 of 2007 (O&M) -5- appeal. No ground to interfere. Dismissed. 3.2.2010 (MAHESH GROVER) JUDGE dss