IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1827 of 2005 Date of Decision: 3.3.2009 Hukam Singh and others. ....... Appellants through Shri R.M.Singh,Advocate. Versus Mohar Singh and others. ....... Respondent nos. 1 & 2 through Shri Rajesh Arora,Advocate. Respondent nos. 3 to 5 through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against judgments and decrees dated 12.8.2004 and 28.1.2005 passed respectively by the Additional Civil Judge (Senior Division), Gurgaon (hereinafter described as `the trial Court') and the Additional District Judge, Gurgaon (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs- respondent nos. 1 and 2 was decreed and the appeal of the defendants-appellants was dismissed. Respondent nos. 1 and 2 filed a suit for mandatory injunction directing the appellants and Smt.Chameli widow of Piare Lal (impleaded as R.S.A.No.1827 of 2005 -2- .... defendant no.2) to demolish the wall shown in red colour and marked by letters EFGH in the site plan attached with the plaint and further to restore the shamlat chowk shown with letters ABCD of house depicted by letters JKLM to its original shape. The pleaded case of respondent nos. 1 and 2 was that the appellants had constructed a wall in the chowk in front of the house which was their joint property. According to them, they were owners of the residential house marked with letters JKLM to the extent of 1/3rd share, which was partitioned way back in the year 1963 by metes and bounds, but the chowk ABCD was left common. They averred that the appellants had constructed a wall at points EFGH which has blocked ingress and egress to their portion of the residential house. Upon notice, the appellants had appeared and filed their written statement denying the averments of respondent nos. 1 and 2. It was pleaded that the matter was settled between the appellants and respondent nos. 1 & 2 on 3.5.1998 and pursuant to that settlement, a sum of Rs.75,000/- was received by respondent nos.1 & 2 and Bhagwan Singh (impleaded as proforma defendant no.10 in the suit) and by virtue of the same, they had become owner of the disputed site. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiffs are entitled to the relief of mandatory injunction, as prayed for?OPP 2. whether the suit is not maintainable in the present R.S.A.No.1827 of 2005 -3- .... form?OPD 3. Whether the suit is barred by time?OPD 4. Relief. On appraisal of the evidence before it, the trial Court concluded that the plea of respondent nos. 1 & 2 was valid and, therefore, while accepting the same, decreed the suit. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellants contended that the property in question being joint, a suit for mandatory injunction was not maintainable at all. It was argued that since there was no partition even as per the showing of respondent nos. 1 & 2, no injunction could be granted against the co-sharers. It was next contended that in any eventuality, the matter was compromised and a sum of Rs.75000/- was paid to respondent nos. 1 & 2 and a positive case had been set up by the appellants that on 3.5.,1998, a compromise was effected and that fact was not denied by filing a replication. On the other hand, learned counsel for respondent nos. 1 & 2 contended that the concurrent findings of fact have been recorded by the Courts below which require no interference. He submitted that the alleged compromise pleaded by the appellants had not been proved and, therefore, the findings of the Courts below cannot be termed to be perverse. I have thoughtfully considered the respective contentions and R.S.A.No.1827 of 2005 -4- .... have perused the record. In my opinion, the contentions as raised by the learned counsel for the appellants are misconceived. Concededly, the chowk which was only unpartitioned property between the parties was joint. The construction of wall by the appellants has not been denied. If the partition had not been effected and the parties were not in settled possession, there was no occasion for the appellants to raise the wall to the detriment of respondent nos. 1 & 2. The plea of compromise as raked by the learned counsel for the appellants has also not been established. The document Exhibit DW1/A was not proved in accordance with law as neither the scribe was produced nor any independent witness from the village or the attesting witness thereof was examined to prove the same. The Courts below have also noted that the contents of this document were contradictory as in the first part, it was given out that Rs.75000/- had been paid by the appellants to respondent nos. 1 & 2 and Smt.Bimla Devi & Bhagwan Singh (impleaded as defendant nos. 9 & 10 in the suit), whereas in the later part, it was written that no amount was paid at the time of execution thereof and the entire sale consideration was to be paid at the time of registration. Therefore, this document was rightly discarded by the Courts below. In view of the aforementioned observations and noticing the fact that the concurrent and consistent findings of fact have been recorded by the Courts below and also finding that no substantial question of law arises for determination, I am of the view that this appeal is devoid of any R.S.A.No.1827 of 2005 -5- .... merit and the same is liable to be dismissed. Ordered accordingly. March 03,2009 ( Mahesh Grover ) “SCM” Judge