RSA No.291 of 2008(O&M) 1 ` IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.291 of 2008(O&M) Date of decision: 14.11.2008 Jaswinder Singh ......Appellant Versus Sukhjinder Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Arora, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the defendants from interfering in any manner, into his possession, has been dismissed. Briefly stated, the plaintiff had filed a suit against the defendants restraining them from dispossessing him from the house in dispute averring that the plaintiff and defendant No.1 are brothers. Earlier Jangir Kaur, mother of the plaintiff was the owner of the house in dispute and during her lifetime she had executed a Will dated 1.2.2001 in his favour as he used to serve her. It is further alleged that defendant No.1 and Gurjant Singh used to reside separately with their families for the last about 16 years and they were already given their due shares. Jangir Kaur died on 5.3.2002 and after her death the plaintiff is continuing to be in possession of the house in dispute as he is the owner on the basis of the said Will. It is alleged that the defendants had made an attempt to take the possession of the house in dispute. Hence, this suit. RSA No.291 of 2008(O&M) 2 ` Upon notice, defendants No.1 to 3 contested the suit. On merits, it was stated that Jangir Kaur was not the owner of the house in dispute. It was alleged that Gheecher Singh was having one house and two houses were purchased by him by spending amount from his own pocket in the names of his five sons namely Sukhjinder Singh-defendant No.1, Jagwinder Singh alias Gangoo, Gurjant Singh, Pohla Singh and Thella Singh alias Jaswinder Singh. After the death of Gheecher Singh, they partitioned three houses orally including the house in dispute and as per the settlement, the house in dispute fell to the share of Jaswinder Singh and Jagwinder Singh and Jangir Kaur had been residing with Jagwinder Singh and was having the right of residence only. The other houses came to the share of other brothers and they came into separate possession on the basis of said memo of partition and after the said partition, the plaintiff and Jagwinder Singh had become the owner of the property in dispute to the extent of one half share each. It is further averred that on the death of Jagwinder Singh , his family i.e wife and sons are in possession of the house. It was denied that the plaintiff had any concern with the suit property. It was also stated that the plaintiff is not in possession of the house in dispute. So, the suit is not maintainable in the present form. Some other legal objections were also raised and dismissal of the suit was prayed for. The Courts below upon appreciation of evidence collected have held that the identity of half portion of which the plaintiff alleged his possession is not established and observed that the plaintiff has come to the Court by concealing the material facts with respect to the partition amongst the brothers and held that in the absence of specific portion and the possession of the plaintiff over specific portion, no injunction can be granted and accordingly dismissed the suit of the plaintiff. RSA No.291 of 2008(O&M) 3 ` Not satisfied with the judgment and decrees of the Courts below, the plaintiff has filed the instant appeal. I have heard learned counsel for the appellant and perused the record. Both the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff has concealed the factum of partition amongst the brothers and he had not put the true facts before the Court and claimed himself to be sole owner in possession of the disputed house whereas from the evidence on record it is clear that in half portion of the disputed house the plaintiff is residing and the other half portion fell to the share of his brother Jagwinder Singh. The Courts below have also found that in the absence of identity of the half portion in possession of the plaintiff, no injunction can be granted in favour of the appellant. There is nothing on record to show as to which portion of the disputed house the plaintiff is in possession. So, in the absence of any specific portion of the possession of the plaintiff over the specific portion of the disputed house, no injunction could have been granted. Learned counsel for the appellant was unable to point out any infirmity or illegality in the findings of fact recorded by both the Courts below. Thus, the appeal is without any merit. No substantial question of law arises in this appeal. Dismissed. November 14, 2008 (RAKESH KUMAR GARG) ps JUDGE