RSA No.3914 of 2009(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3914 of 2009(O & M) Date of Decision:19.08.2010 Balwant Rai & Ors. .... appellants Versus Braham Dutt & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Gorakh Nath,Advocate for the appellants **** RAKESH KUMAR GARG J. This is plaintiffs' second appeal challenging the judgement and decrees of the courts below whereby their suit for permanent injunction to the effect that they were owners in possession of half share of land comprised in khewat No.216, khatoni No.252, rectangle No.81, killa No.9/2 (1-19) situated at village Bawal over the suit land to the extent of half share, was dismissed. The present suit was filed by the plaintiff-appellants, inter alia pleading that they were owners in possession of the suit property to the extent of half share comprised in khewat No.216, khatoni No.252, rectangle No.81, killa No.9/2(1-19) situated at village Bawal, except one room of which Dhanraj and Dariyao sons of Net Ram r/o Bawal were the owners by virtue of a judgement and decree dated 25.07.1989 passed in Civil Suit No.185 of 1984. It was alleged that the respondents wanted to interfere into the peaceful possession and ownership of the plaintiffs over the RSA No.3914 of 2009(O & M) 2 disputed property by taking the advantage of their absence and had started collecting constructions material around the disputed site near rasta and in case they succeed in doing so, the plaintiffs would suffer irreparable loss and injury. The defendants were asked not to interfere in their peaceful possession over the suit property but they were adamant and refused to accede to the request of the plaintiffs. Hence the suit. The suit was contested by the defendants raising various preliminary objections in the written statement including the objection to the maintainability of the suit. On merits, it was denied that plaintiffs were owners in possession of the disputed property to the extent of half share. It was further stated that father of the plaintiffs along with other co-sharers were owners in possession of the land measuring 99K-19 marlas including the disputed khasra No.9/2. The co-sharers partitioned the joint land between themselves and the land measuring 49K-13M excluding khasra No.9/2 fell to the share of the father of the plaintiff whereas the land measuring 50K-4M fell to the share of other co-sharers. A rapat No.360 dated 19.06.1984 was recorded regarding the said partition and mutation No.5823 was also sanctioned in favour of the father of the plaintiffs and other co-sharers of the land. It was further submitted by the defendants that when the former suit was instituted in the year 1984, plaintiffs were coming joint owners of possession of the disputed khasra No.9/2 but at the time of passing of the decree dated 25.07.1989, the disputed khasra number did not remain with them in oral partition which took place on 19.06.1984 and the same fell to the share of other co-sharers namely Sumer Singh etc.who were now owners in its possession. It was further stated that the disputed site is part of killa No.10(7-18) which was owned and possessed by them by virtue of registered sale deed dated 25.06.2001. While disputing the correctness of the boundaries and dimensions of the suit property, defendants further submitted that they had RSA No.3914 of 2009(O & M) 3 raised construction of pucca four wall of 6 in height over the suit property very much in the presence of the plaintiffs who did not raise any objection at that time. It was thus prayed that the suit be dismissed. On the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiffs are owners in possession to the extent of half share in the property as mentioned in para No.1 of the plaint?OPP 2. Whether the suit of the plaintiffs is not maintainable in the present form,?OPD 3. Whether the plaintiffs have no locus standi to file the present suit?OPD 4. Whether the plaintiffs have no cause of action to file the present suit?OPD 5. Whether the plaintiffs are estopped to file the suit by his act and conduct?OPD 6. Relief. The parties led oral as well as documentary evidence in support of their respective claims. On conclusion of the trial, issue No.1 was decided against the plaintiffs, while issues No.2 to 5 were decided in favour of the defendants and ultimately, the suit of the plaintiffs was dismissed with costs by the trial court vide its judgement and decree Feeling aggrieved therefrom, the plaintiffs filed an appeal before the Lower Appellate Court. The aforesaid appeal was also dismissed by the Lower Appellate Court vide impugned judgement and decree dated 06.06.2009. While dismissing the appeal, the Lower Appellate Court observed as under: “Admittedly, the father of the plaintiffs namely Nathu Ram RSA No.3914 of 2009(O & M) 4 along with Raja Ram was coming as joint owner in possession of the land measuring 104 kanals 1 marla including disputed khasra No.9/2(1-19), as per the copy of jamabandi for the year 1979-80 Ex.D-4. It is further not disputed that when the former suit was instituted by Nathu Ram and other co-sharers on 27.03.1984 against Dhanraj and Dariyao Singh sons of Net Ram, seeking a decree for possession by way of demolition in respect of some portion of disputed khasra No.9/2 over which illegal construction in the form of a pucca room was raised, the land was still joint between them Ex.PW1/A is the certified copy of the plaint, while Ex.PW2/B is the certified copy of the compromise entered into between the parties in the former suit which was decreed in terms of the said compromise by the learned Court of Sh. H.P.Singh, the then Additional Senior Sub Judge, Rewari vide judgement and decree dated 25.07.1989, certified copy of which have been placed on record as Ex.PW2/C and Ex.PW2/D, respectively. A glance over the written compromise Ex.PW2/B arrived at between the parties in the former suit would reveal that parties therein agreed that defendants will be deemed to be owner in possession of the room raised by him over some portion of khasra No.9/2, whereas the plaintiffs shall continue as its owners as before. However, it is the specific case of the defendants that before passing of the said decree on 25.07.1989 in the former suit, joint land had already stood partitioned orally between the father of the plaintiffs and other co-sharers on 19.06.1984 and a rapat bearing RSA No.3914 of 2009(O & M) 5 No.360, the certified copy of which is Ex.D2, was also entered in this regard by the revenue authorities. A close scrutiny of the aforesaid rapat roznamcha wakyati would reveal that the land measuring 49 Kanal 19 marla comprised in rectangle No.80 killa Nos.4 min(5-8), 5 min (1-10), 7 min(5-15), 8(7-2), 9(7-2), 10(7-2), 11(8-0),12(8- 0) excluding the disputed khasra No.9/2 fell to the share of the father of the plaintiffs namely Nathu Ram, whereas the land measuring 50K comprised in rectangle No.80, killa Nos.5/2 min(1-3), 6(8-0), 7 min(1-0), 13(8-0), 14(8- 0), 15(7-12), rectangle No.81, killa No.9/2(1-19), 10(7- 18), 11(8-0) fell to the share of other co-sharers namely Sumer Singh etc.in an oral partition and a mutation bearing No.5823 Ex.D-1 was also sanctioned accordingly in their favour. Therefore, it could not be said that the plaintiffs were having any interest in the disputed khasra No.9/2 after the said oral partition between their father and other co-sharers of the land. However, these material facts were clearly suppressed by the plaintiffs while instituting the present suit. As such the findings of the learned trial court returned under issue No.1 do not suffer from any legal infirmity so as to call any interference by this Court.” Still not satisfied, the plaintiffs have approached this Court by way of instant appeal. I have heard learned counsel for the appellants and perused the impugned judgement and decree. Counsel for the appellants was unable to challenge the correctness of the findings of the courts below before this Court by pointing RSA No.3914 of 2009(O & M) 6 out any evidence on the basis of which the aforesaid findings could be controverted. The appellants have failed to prove their ownership and possession over the suit property and thus the courts below rightly held that the suit was not maintainable. Moreover, the plaintiff-appellants have filed a suit for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over a share in the suit property with alternative prayer that in case during the pendency of the suit, the defendants succeed in interfering in any portion of the suit property then a decree for possession be passed in their favour. In my view a suit for injunction restraining the defendants from interfering with the possession of the plaintiffs over a share of the suit property was defective and not maintainable in the present form. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 19.08.2010 neenu