RSA No. 1363 of 2005 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1363 of 2005 Date of decision: December 11,2008 Jaswinder Singh and others ..Appellants. Versus Darshan Singh and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.K.Dahiya, Advocate for the appellant. Ms.K.K.Kahlon, Advocate for the respondent. ... Rakesh Kumar Garg,J. This is defendants second appeal challenging the judgment and decrees of the courts below where the suit of the plaintiff-respondent for permanent injunction restraining the defendant Nos.1 and 2 from alienating the specific portion of the suit land and from raising construction over it except in due course of law has been decreed and the counter claim of the defendant Nos.1 and 2 has been dismissed. Briefly stated the facts of the case as averred in the plaint are that the suit property is ancestral property, inherited by plaintiff and other co-sharers. It is joint and is being used by all the co-sharers without any interruption. Defendants No.1 and 2 are threatening to raise construction without having recourse to partition. Plaintiff asked the defendants to admit his claim, but they have refused. Hence, suit for permanent injunction was filed. Defendants Nos.1 and 2, in their written statement raised preliminary objections that plaintiff has got no locus standi to file the suit and had produced a wrong site plan and the plaintiff had not come to the court with clean hands. Denying other assertions in the plaint, it has further been averred that an oral partition took place between the plaintiff and his brother after the death of RSA No. 1363 of 2005 2 Hazara Singh and in that oral partition; plaintiff was given the residential house and other plot, which he has already sold. Sadhu Singh deceased was given four small plots situated within the residential area of the village. Sadhu Singh since deceased had effected an oral partition among his sons and in that oral partition among his sons and in that oral partition among his sons and in that oral partition, the suit property had come to the share of answering defendant No.1 and the answering defendants have raised construction over the suit property and they have got every right to raise further construction over the same. Plaintiff has got no right, title or interest in the suit property and it has been prayed that the suit be dismissed. In his separate written statement, defendant No.7 raised preliminary objections that the suit was not maintainable in the present form and that plaintiff has not come to the court with clean hands. Denying other assertions in the plaint, it has further been averred that the answering defendant is in joint possession of the suit property and has raised construction jointly with other defendants and plaintiff and it has been prayed that the suit be dismissed. Defendant Nos.1 and 2 also preferred counter-claim, averring that Hazara Singh was owner of the property as shown in the site plan marked by words ABCD. In an oral partition, the suit property had fallen to the share of Sadhu Singh since deceased. The property shown in yellow colour and other vacant plot had fallen to the share of Darshan Singh plaintiff. Subsequently, Sadhu Singh effected an oral partition among his sons and the plot marked by word ‘A’ had fallen to the share of defendants. Plot marked by word ‘B’ was given to Baldev Singh, plot ‘C’ was given to Chuhar Singh and Plot ‘D’ was given to Makhan Singh. Plaintiff had sold his plot to different persons and he is now in possession of the residential house. It has been prayed that the plaintiff and other defendants be restrained from interfering in the possession of counter claimants over the suit property. Plaintiff filed written statement to the counter-claim taking up preliminary objections that the counter-claim was not maintainable in the present RSA No. 1363 of 2005 3 form and that defendant No.1 had no locus standi to file the counter claim. No site plan has been produced with the counter claim and further that the counter claim was ambiguous and was bad for non-joinder of necessary parties. Denying other assertions in the counter-claim, it has further been averred that Hazara Singh was only a co-sharer to the extent of ½ Share. Plaintiff is owner of half share in the suit property and the property marked by word ‘E’ was his exclusive ownership and it has been prayed that the counter claim be dismissed. After hearing learned counsel for the parties and scanning the evidence produced on record, the learned trial Court vide the impugned judgment and decree, decreed of the plaintiff-respondent for permanent injunction and dismissed the counter claim filed by the defendant-appellants. The appeal filed by the defendants against the aforesaid judgment and decrees of the trial Court was also dismissed by the Additional District Judge, Nawanshahar vide impugned judgment and decree dated 15.2.2005 Feeling aggrieved against the same, the present appeal has been filed by the appellants. I have heard learned counsel for the parties and perused the record. In this case, Darshan Singh has sought permanent injunction against the appellant raising specific plea that the property is joint of the parties and has not been partitioned so far. However, on the contrary, the appellants have taken up the plea that the property had orally been partitioned between them. Onus to prove the partition was upon the appellants. To prove the partition, the appellants examined DW1 Sarwan Singh. Although in examination- in-chief, he supported the case. However, in his cross-examination, he admitted that he is not witness of the oral partition affected between Sadhu Singh and Darshan Singh respondent No.1 and he even did not know who was the person present at the time of oral partition. This admission of DW1 Sarwan Singh completely falsify the factum of partition. The appellants have also placed on record photo copy of sale deed to prove that 15 years back Darshan Singh had RSA No. 1363 of 2005 4 sold three plots measuring 5 marlas, each to one Prem Singh. However, these sale deeds were neither proved by the appellants nor any effort was made by them to get these sale deeds produced on record by moving necessary application for production of documents as provided in the Civil Procedure Code. Jaswinder Singh while appearing as DW2 in his cross-examination pleaded ignorance about the number of plots which fell to the share of Drshan Singh and Sadhu Singh on the basis of partition as alleged by them. Thus after considering the evidence, placed on record by the appellants, the courts below recorded a concurrent finding of fact that no oral partition ever took place between the parties and that the property is still joint of the parties. Learned counsel for the appellant was unable to point out any infirmity or illegality in the findings of facts recorded by the courts below. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 11, 2008 (RAKESH KUMAR GARG) nk JUDGE