RSA No. 1571 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1571 of 2011 (O&M) Date of decision 7.7.2011. Gurjit Singh and others ...... Appellant. versus State of Punjab and another ...... Respondents. Present : Mr. G.S.Nagra, Advocate for the appellants. K.C.PURI . J. This appeal is directed by plaintiffs/appellants against the judgment dated 9.2.2011 passed by Shri Arun Gupta, Additional District Judge, Amritsar vide which the appeal preferred by the plaintiff/appellant against the judgment and decree dated 5.9.2006 passed by Shri Rajeev Kumar Beri, PCS, Civil Judge ( Junior Division ) Ajnala was dismissed. Plaintiffs filed suit for permanent injunction alleging that they are the joint owners. The suit land was allotted to them during consolidation of holdings. Suit land was not fertile and uncultivable and was made fit for cultivation by their fathers by spending huge amount. The RSA No. 1571 of 2011 (O&M) 2 defendants have no concern with the suit property and they are threatening to dispossess them from there despite their requests. Defendants No.1 and 2 appeared and filed joint written statement raising preliminary objection that plaintiff Nos.1 and 4 have not signed/thumb marked the plaint/verification, the suit is barred under Section 11 of the Code of Civil Procedure. The plaintiffs have no locus standi and cause of action to file this suit. The plea of estoppel has also been taken. The property is in possession of Indian oil for the last two years and as such the suit is not maintainable against cosharer. The suit land was owned by Jumla Mushtarka Malkan and defendants are cosharers in joint possession over it. Plaintiffs filed replication to the written statement reiterating the stand taken in the plaint while denying the contents of the written statement. The learned trial Court framed the following issues :- 1. Whether the plaintiffs are in possession of the suit property as alleged ? OPP 2. Whether the plaintiffs are entitled to injunction prayed for ? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether suit is hit by principle of res judicata ?OPD 5. Whether plaintiffs have got no locus standi and cause of action to file the present suit ?OPD 6. Whether plaintiffs are estopped by their own act and conduct from filing the present suit ?OPD. 7. Relief. RSA No. 1571 of 2011 (O&M) 3 To prove its case, Gurjeet Singh, one of the plaintiffs appeared as (PW-1) and also examined Sakattar Singh (PW-2) and Dalbir Singh (PW- 3) and closed the evidence after tendering certain documents into evidence. The defendants examined Lakha Singh (DW-1) and Gulzar Singh (DW-2) and closed their evidence after tendering certain documents. The trial Court has taken issue Nos.1 and 2 together and decided against the plaintiffs and in favour of defendant Nos.1 and 2. All other issues were also decided in favour of defendants No.1 and 2 and against the plaintiffs. In view the findings, suit of the plaintiffs was dismissed vide judgment and decree, dated 5.9.2006. Feeling dissatisfied with the above said judgment and decree, dated 5.9.2006, the plaintiff preferred the first appeal and the same was dismissed vide judgment dated 9.2.2011 passed by Shri Arun Gupta, learned Additional District Judge, Amritsar Feeling dissatisfied with the aforesaid judgment and decree dated 5.9.2006 and dated 9.2.2011, the plaintiffs have preferred the present appeal. The plaintiffs/appellants in para No.8 of the grounds of appeal have mentioned that following law points are involved in the present appeal :- a) Whether the impugned judgments and decrees dated 9.2.2011 and 5.9.2006 passed by the courts below are contrary to law, evidence and facts on the file ? b) Whether the courts below have misread the revenue record produced by the appellants-plaintiffs before passing the impugned judgments and decrees ? c) Whether in the present suit for permanent injunction RSA No. 1571 of 2011 (O&M) 4 principle of res-judicata applies ? d) Whether the ld. Courts below have read in law while believing the inadmissible evidence produced by the defendants-respondents and in disbelieving the admissible evidence produced by the Appellants-plaintiffs ? e)Whether the Courts below have wrongly ignored the Hiledari rights of the plaintiffs-appellants while passing the impugned judgments and decree ? f) Whether the impugned judgments and decrees dated 9.2.2011 and 5.9.2006 passed by the courts below are against law as well as principle of natural justice? Learned counsel for the appellants has submitted that appellants have recorded owners in possession to the extent of 1/4th share in the suit property. The learned trial Court has misread and misinterpreted the evidence produced on the file. The previous suit does not bar as res judicata as plaintiffs were defendants in that case. Prayer has been made for acceptance of appeal. I have carefully considered the said submission and have gone through the file of this case. This is a mere suit for permanent injunction. The plaintiff can succeeded only if they are able to prove their exclusive possession over the suit property. In the earlier suit, the present plaintiffs were the defendants. The assertions made in that suit is that plaintiff of the earlier case and the defendant of that case i.e., now the plaintiffs are in possession of the suit property. In the earlier litigation it was held that the present plaintiff and plaintiff in the other cases were not in possession of the suit property. It is settled law that a co-sharer can seek injunction against other co-sharer if he is able to prove his exclusive possession over the suit property. Even in the RSA No. 1571 of 2011 (O&M) 5 jamabandies shown during the course of arguments, plaintiffs/appellants have not been shown in exclusive possession of the suit property. A co- sharer cannot get injunction against other co-sharer. There is concurrent finding of fact that recorded by both the records below and plaintiff failed to prove their exclusive possession over the suit property and that being a finding of fact cannot be challenged in the second appeal. The question mentioned in para No.8 of the plaint does not exist at all. So, in the present appeal in the absence of any substantial question of law, the appeal is not maintainable. There is nothing on the file that both the Courts have passed judgment and decree contrary to law and evidence on the record. There is nothing on the file that both the Courts below have misread the revenue record and the other evidence on the file. There is nothing on the file to establish that the trial Court has believed the inadmissible evidence on the file and disbelieved the admissible evidence. There is nothing on the file that judgments of both the Courts below against law and facts and against the natural justice. In view of the above discussion, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 07, 2011 sv