RSA No.4045 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4045 of 2009 (O&M) Date of decision: 21.12.2010 Ramji Lal ......Appellant(s) Versus Amar Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Som Nath Saini, Advocate for the appellant. Mr. Sanjay Mittal, Advocate for the respondent Rakesh Kumar Garg, J. This is defendant's appeal challenging the judgment and decree of the Lower Appellate Court whereby the appeal filed by the plaintiff-respondent against the dismissal of his suit by the trial Court was accepted and a decree was passed in his favour restraining the appellant from interfering in the possession of the plaintiff-respondent over the suit land except in due course of law. As per the averments made in the suit, the land was allotted to one Gopi Chand. The father of the plaintiff-respondent, namely, Bhagta was cultivating the land as Gair Marusi and after his death, the plaintiff- respondent and one Birda came into possession as Gair Marusi tenant under Gopi Chand and after his death they were in possession as Gair Marusi tenant under Sushil Kumar over the suit land to the extent of 1/3rd share and were cultivating the same. It was the further case of the plaintiff- respondent that the defendant-appellant wanted to oust him from the suit RSA No.4045 of 2009 (O&M) 2 land without any right to do so. Hence, the present suit was filed. The suit was contested by the appellant on the ground that Bhagta and his brothers Parbhati and Bhagwana were cultivating the suit land as per their share and after their death, defendant and descendants of Bhagwana were cultivating the suit land in equal share under Sushil Kumar and now Birda, Sher Singh and Ramji Lal were owners in possession of the suit land and the plaintiff had no concern with the suit land nor he cultivated the same. Dismissal of the suit was prayed. Replication was filed by the plaintiff-respondent controverting the averments made in the written statement and reiterating the averments made in the plaint. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is in possession of the suit land since the time of his ancestors? OPP 2. Whether defendant has no concern with the suit land and he is interfering in the possession of the plaintiff? OPP 3. Whether plaintiff is entitled to the injunction prayed for? OPD 4. Whether plaintiff has no locus standi and cause of action to file the suit? OPD 5. Whether suit is not maintainable in the present form? OPD 6. Whether plaintiff is estopped to file his suit due to his own act and conduct? OPD 7. Whether suit is false and vexatious and defendant is entitled to special cost? OPD RSA No.4045 of 2009 (O&M) 3 8. Relief.” Both the parties led evidence in support of their respective contentions. After hearing learned counsel for the parties, the trial Court dismissed the suit. However, on appeal, the Lower Appellate Court reversed the findings of the trial Court on issues No.1 to 3 and decreed the suit. While decreeing the suit, the Lower Appellate Court recorded a finding that in the revenue record, the plaintiff-respondent has been recorded as Gair Marusi tenant and there was no evidence that the plaintiff-respondent had surrendered his possession as tenant over the suit land and thus, the appellant had no right to interfere in his possession as a tenant to the extent of 1/3rd share in the suit land. Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal: “(i) Whether the impugned judgment passed by the learned appellate court is based on misreading and misconstruing the documentary evidence in the form of Ex.D-3 and D-4, Ex.P-1 to P-13 as well as oral statement of PW-1 respondent Amar Singh? (ii) Whether the judgment and decree Ex.D-3 and D-4 are binding on the respondent even if he is mentioned as proforma defendant or not? (iii) Whether the respondent could succeed the rights of other brothers Bhagwana and Parbhati besides Bhagta? RSA No.4045 of 2009 (O&M) 4 (iv) Whether keeping in view the facts and circumstances, the respondent could succeed the rights along with his brother Birda Ram from their father Bhagta to the extent of 1/3rd share or they would succeed the whole estate including the Bhagwana and Parbhati? (v) Whether the impugned judgment of the learned Appellate court is not perverse? (iv) Whether in the facts and circumstances of the present case and keeping in view the document Ex.D3 and Ex.D4 the respondent is not estopped from filing the present suit and the findings recorded otherwise are legally sustainable?” It is relevant to mention at this stage that at the time of motion hearing, it was contended by the counsel for the appellant that the plaintiff- respondent could not seek injunction against the appellant who was a co- sharer with him in the land in dispute. Noticing the aforesaid contention, notice of motion was issued and parties were directed to maintain status quo with regard to possession of the property vide order dated 22.1.2010 by this Court. However, during the course of hearing, today, it has been found that the aforesaid contention raised by the counsel for the appellant at the time of motion hearing is not correct as the plaintiff-respondent has not claimed ownership of the suit land and has come to the Court seeking injunction to protect his possession as a tenant. Simply because the appellant has become a co-sharer in the suit land on the basis of a sale deed in his favour will not affect the rights of the plaintiff-respondent to protect his possession except in due course of law. Counsel for the RSA No.4045 of 2009 (O&M) 5 appellant could not dispute the possession of the plaintiff-respondent in the suit property as tenant. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 21, 2010 (RAKESH KUMAR GARG) ps JUDGE