RSA No.4302 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4302 of 2011 (O&M) Date of decision:16.05.2012 Shamsher Singh ......Appellant Vs. Harjit Kaur & others ...Respondents CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA. Present: Mr. R.K. Arya, Advocate for the appellant. *** Tejinder Singh Dhindsa, J. Plaintiff-Harjit Kaur widow of Angrej Singh filed a suit for mandatory injunction directing the defendants to permit her to raise wall at point X to XI as shown in yellow colour in the site plan attached alongwith the plaint and for permanent injunction restraining the defendants from creating any hindrance in the construction work to be done by the plaintiff for raising the wall in question. It was pleaded that initially, the husband of the plaintiff namely Angrej Singh and defendant No.1 Shamsher Singh had purchased the suit property measuring 25 ½ Marlas which was shown in red and green colour in the site plan. Such land was purchased vide two different sale deeds dated 10.04.1987 & 20.06.1987. After the purchase of the property, an oral partition took place between Shamsher Singh and deceased Angrej Singh and in terms thereof, the property reflected in red colour in the site plan fell to the share of deceased Angrej Singh and the property reflected in the green colour, fell to the share of Sharsher Singh, defendant No.1. A wall marked by letters XY in the site plan was raised in RSA No.4302 of 2011 (O&M) -2- between the properties which reflected the oral partition having been acted upon. It was pleaded that defendant No.1 in connivance with defendants No.2 to 4 had demolished the wall from point X-XI and were now interfering and not permitting the plaintiff to raise the wall on the site in question. Plaintiff pleaded that the oral partition having already been acted upon and the wall in question having been erected earlier in point of time, she was vested with a right to construct and re-erect the wall from point X- XI and accordingly, the suit had been filed. Defendants No.2 to 4 inspite of service did not contest the suit and were proceeded against ex-parte. Defendant No.1 contested the suit denying the fact of any partition having taken place. Even the wall in question shown in yellow colour in the site plan was stated to have never been constructed and as such, it was stated that there was no question of having demolished the same. Accordingly, prayer was made for dismissal of the suit. The Trial Court vide judgment and decree dated 21.07.2009, decreed the suit and the defendants were restrained from creating any hindrance in the construction work to be done by the plaintiff for raising wall as per mark X-XI shown in yellow colour in the site plan, Ex.P-1 & Ex.P-2. A civil appeal preferred by defendant/appellant Shamsher Singh has been dismissed by the District Judge, Amritsar vide judgment dated 08.08.2011, thereby, affirming the decision of the Trial Court. Resultantly, the defendant/appellant Shamsher Singh is in second appeal before this Court. I have heard Mr. R.K. Arya, Advocate for the appellant at length. RSA No.4302 of 2011 (O&M) -3- Counsel would contend that the suit for injunction filed by the plaintiff/respondent itself was not maintainable. As such, relief could not have been granted by the Courts below against the co-sharer. Counsel would further contend that the relief of injunction could not have been granted by the Courts below as the efficacious remedy of having the suit property partitioned, was available to the plaintiff/respondent. Counsel would further contend that the Courts below have misread the evidence adduced on record and have accordingly returned a perverse finding that the wall had infact been constructed upon the site in question, which was stated to be in furtherance of the alleged oral partition having been effected between the parties. The Courts below have taken cognizance of the judgment/decree Ex.P-3 & Ex.P-4 in suit having been filed by the defendant-Shamsher Singh i.e. suit bearing No.236 of 1996 decided on 24.12.1998 by the Civil Judge, Junior Division, Amritsar titled as Shamsher Singh Vs. Harjit Kaur and others filed for separate possession by way of partition of the suit property in which a specific issue had been framed to the following effect: “Whether the suit property has already been partitioned between the parties on the basis of family partition?” Undisputedly, the suit property in the previous suit, is the same as in the present suit and the aforementioned issue was decided in favour of Harjit Kaur-present plaintiff and against Shamsher Singh- present defendant (Plaintiff in the earlier suit). It is also not in dispute that no appeal has been preferred against the judgment/decree dated 24.12.1998, Ex.P-3 and Ex.P-4 and the findings returned therein being attained finality. As such, there is no RSA No.4302 of 2011 (O&M) -4- perversity as regards the concurrent findings returned by the Courts below to hold the suit property to have been partitioned between the parties on the basis of an oral family partition. As regards the existence of the wall in question at point X as per site plan, Ex.P-1, the same was not denied by DW-1, Shamsher Singh himself. DW-1, Shamsher Singh in his cross- examination himself admitted the fact that there was a wall at point X-XI as shown in the site plan, Ex.P-1. I find that the Court below have granted the discretionary relief of injunction in favour of the plaintiff/respondent upon due appreciation of evidence adduced on record. No interference in second appeal by this Court in exercising of jurisdiction under Section 100 CPC is called for as no question of law much less substantial question of law arises for consideration in the present second appeal. The appeal is dismissed accordingly. May 16, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE Note: Whether to be reported? No