IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2631 of 2008 Date of decision: 21.4.2009 Siri Kishan … Appellant Versus. Ram Rati and others … Respondents CORAM: THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Hemant Bassi, Advocate, for the appellant. … ARVIND KUMAR, J: This is plaintiff's second appeal directed against the judgment and decree of the Courts below whereby his suit for permanent injunction and mandatory injunction has been dismissed. Plaintiff in his suit pleaded that he and the defendants were co-sharers in joint possession of land measuring 2 kanals comprised in Khewat No. 98, Khata No. 154, Rect. No.68, Killa No. 21/1 shown by letters ABCD in the site plan situated within the revenue estate of village Jhanhrola Khera, Tehsil Farrukh Nagar, District Gurgaon. Plaintiff filed a partition suit before the Assistant Collector I Grade, Gurgaon, in regard to the suit land and other lands of other khewats, which was pending. The suit land was likely to come in the share of the plaintiff as per Naksha Be. Defendant No.1 challenged the Naksha Be before the appellate Authority which was accepted. Plaintiff filed an appeal before the Commissioner, Gurgaon, against order dated 17.4.2003 which was pending. Defendant No.1 wanted to encroach upon the land by way of raising construction to take the benefit in the partition proceedings. Hence, the suit. Upon notice of the suit, defendant No.1 in his written statement denied that the possession over the suit land was joint; rather he was in exclusive possession thereof. It was further denied that the plaintiff was either the owner or in possession of the suit land. While admitting the pendency of partition proceedings, defendant No.1 pleaded that he had constructed a temple and Dharamshala over the suit land which was within the notice and knowledge of the plaintiff. He further pleaded that plaintiff had filed RSA No. 2631 of 2008 -2- another suit for restraining him from raising any sort of construction over Killa No. 21/2 which was pending in the court of Shri Rajesh Sharma, the then learned Civil Judge(Jr. Division), Gurgaon. Trial Court on appreciation of evidence adduced on record, vide judgment and decree dated 10.2.2007, dismissed the suit of the plaintiff while holding that defendant No.1 was in exclusive possession of the suit land and that he had successfully proved that construction of temple and Dharamshala already existed on the suit land which could not be rebutted by the plaintiff by leading any cogent evidence. Aggrieved therefrom, plaintiff filed an appeal which was also dismissed by the first appellate Court vide its judgment and decree dated 24.12.2007. Hence, the present second appeal. Both the Courts below on appreciation of evidence have concurrently found that in the other suit filed by the plaintiff, as mentioned above, plaintiff had made statement on 31.8.2006 (Exhibit P4 in this case) and during cross-examination therein, he had admitted that the temple, dharamshala and rooms were constructed in the suit land after 11.2.2003, which means that he has admitted the construction of temple, dharamshala etc. over the suit land and thus, onus lay heavily on the plaintiff to prove that the construction had been raised after filing of the present suit. However, he has miserably failed to prove the same. Thus, defendant No.1 has been found to be in exclusive possession of the suit land and that is why, he raised construction of a temple and dharamshala thereon. As regards plaintiff’s plea being the co-owner, it has been observed that the rights of the parties would well be decided in partition proceedings. Plaintiff having miserably failed to produce an iota of evidence in support of his claim, the Courts below have rightly concluded that the plaintiff is not entitled to any injunction as prayed for. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed in limine. April 21, 2009 ( ARVIND KUMAR) JS JUDGE