R. S. A. No. 1896 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1896 of 2010 Date of Decision : May 17, 2010 Lal Chand and another .... Appellants Vs. Varinder Kumar and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. S. Boparai, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 and 2 have filed the instant second appeal after having remained unsuccessful in both the courts below. Suit was filed by Parkash Chand (since deceased and represented by respondents no.1 to 7) against appellants and Rekha Rani (respondent no.8/defendant no.3) alleging that Harbans Lal – father of the original plaintiff and Amar Nath – father of appellant-defendant no.1 Lal Chand were brothers. They were joint owners of the total property depicted in the site plan. Without partitioning it, they made mutual arrangement for separate possession and accordingly, ownership continued to be joint and no partition has taken place by metes and bounds. However, Harbans Lal came R. S. A. No. 1896 of 2010 2 in possession of the portion depicted in red colour in site plan annexed with the plaint, whereas Amar Nath came in possession of green coloured portion. Chaubara on first floor over Deori came to exclusive possession of Harbans Lal. Accordingly, plaintiff came in possession of the portion, which was in possession of his father Harbans Lal, whereas defendant no.1 along with other heirs came in possession of the portion, which was in possession of his father Amar Nath. However, defendant no.2 Jagdish Ram, whose house adjoins the aforesaid house on northern side, claims to have purchased the green coloured portion from legal heirs of Amar Nath and on this basis, defendant no.2 threatened to demolish the property including Deori on the ground floor, over which Chaubara on first floor is in exclusive possession of the plaintiff. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the property as shown in red colour in the site plan and restraining the defendants from demolishing any part of the property including Deori on ground floor, which is in possession of the defendants. Defendants admitted that Harbans Lal and Amar Nath were joint owners of the suit property and they made mutual arrangement for separate possession. There is also no dispute that the parties are in separate possession of the portions as pleaded by the plaintiff except regarding one Chaubara on first floor existing over the Deori on the ground floor. Defendant no.2 has purchased the portion of Amar Nath from his legal heirs R. S. A. No. 1896 of 2010 3 and defendant no.2 is in possession of the said Chaubara. Various other pleas were also raised. Defendant no.2 also claimed himself to be exclusive owner in possession of the property. Learned Civil Judge (Junior Division), Ludhiana, vide judgment and decree dated 05.05.2008, decreed the plaintiff's suit. First appeal preferred by defendants no.1 and 2 has been dismissed by learned Additional District Judge, Ludhiana, vide judgment and decree dated 26.09.2009. Feeling aggrieved, defendants no.1 and 2 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that the Chaubara in dispute is not in exclusive possession of the plaintiff, but both parties are in possession of half portion each thereof. The contention cannot be accepted. Admittedly, there is no partition wall in the said Chaubara. If in the mutual arrangement, both parties were to be in exclusive possession of half portion each thereof, then partition wall would have been raised to separate the said portions. Admittedly, there is no such partition wall in the said Chaubara. It does not appeal to reason that while the parties made arrangement for separate and exclusive possession of portions of the remaining property, they would keep this Chaubara without partitioning wall, if both of them were to get possession of half share each thereof. On R. S. A. No. 1896 of 2010 4 the other hand, the other portion of the property in the possession of the defendants is also lying deserted and uninhabited, whereas the plaintiff was residing in his portion. From the statement of defendant no.2 also, it turns out that he or any other defendant is not in possession of the Chaubara in dispute and rather plaintiff is in possession thereof. Both the courts below, after appreciation of evidence, have arrived at concurrent finding in favour of the plaintiff. The said finding, based on appreciation of evidence, cannot be said to be perverse or illegal warranting interference in second appeal. Defendant no.2 claimed himself to be exclusive owner of his portion, although admittedly there was no partition and there was only mutual arrangement for separate possession. In addition to the aforesaid, there is only an agreement in favour of defendant no.2 by defendant no.1 and other heirs of Amar Nath and there is not even a sale deed in his favour. Be that as it may, plaintiff's exclusive possession over the Chaubara in question is established. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be without any merit and is accordingly dismissed in limine. May 17, 2010 ( L. N. MITTAL ) monika JUDGE