R.S.A.No. 3397 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3397 of 2009 (O&M) Date of decision: 22.9.2009 Pawan Kumar and another ......Appellants Versus Puran Singh .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Balkar Singh, Advocate, for the appellants. **** SABINA, J. Plaintiff Puran Singh filed a suit for permanent injunction, which was decreed by the Civil Judge (Jr.Divn.), Kurukshetra vide judgment and decree dated 22.2.2008. In appeal, the said judgment and decree were upheld by the District Judge, Kurukshetra vide judgment and decree dated 3.3.2009. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “ 2. The plaintiff, in his suit for permanent injunction R.S.A.No. 3397 of 2009 (O&M) 2 pleaded that his father Gian Chand was the owner of a residential house in the abadi deh of village Sonti; his father was a blacksmith who died about 18 years back; he and his brother Soran Singh were living jointly in the said house during the life time of their father and after two years of the death of their father, the two brothers got partitioned their residential house. The plaintiff after partition got the residential house (hereinafter called the suit property) bounded as under:- North: Johar of the village South: Gali Shar-i-am East: House of Babu Ram son of Sonu West: House of Soran Singh son of Gian Chand, brother of the plaintiff. The plaintiff pleaded that the suit property consisted of two rooms, one kitchen and a Courtyard bounded with a pucca wall upto the height of 4 feet; the gate of his house opened towards southern side in the main street leading from East to West; the plaintiff was using the compound/courtyard for domestic purposes i.e. for keeping wood and fodder; he also planted a tree under which he used to tether the cattle; about 15 years back he got an electricity connection and was paying the bills regularly without any default, whereas, the house of R.S.A.No. 3397 of 2009 (O&M) 3 the defendants was situated far away from the suit property. Since the defendants threatened to interfere in the suit property by demolishing the boundary wall, the necessity to file the suit arose. 3. The suit was contested by the defendants. In their joint written statement, they controverted the various pleas of the plaintiff. According to them, the entire suit property belonged to their father, who gave some portion of it to the plaintiff as licensee vide entry of the petition writer bearing no.131 dated 30.4.1963, but a portion measuring 14’ x 20’ adjoining the Phirni was taken by their father. It was pleaded that the plaintiff took illegal possession of the said portion on 26.3.2006 and then filed the present suit. It was, thus, pleaded that the plaintiff had illegally taken possession of the said portion on 26.3.2006. The suit was also contested on the grounds of maintainability, cause of action and joinder of necessary parties. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is owner in possession of residential house as mentioned in para No.2 of the plaint? OPP 2. If issue No.1 is proved, whether the R.S.A.No. 3397 of 2009 (O&M) 4 defendants can eb restrained from interfering in the peaceful possession of the plaintiff over the house in question? OPP 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether the plaintiff has no cause of action to file and maintain the present suit? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The plaintiff had filed a suit for permanent injunction that the defendants be restrained from interfering in his peaceful possession over the residential house in dispute. The defendants admitted the possession of the plaintiff over the house in dispute except portion measuring 20’ x 14’ since 30.4.1963. The case of the defendants was that the plaintiff had taken illegal possession of the portion measuring 20’ x 14’. However, both the Courts below, after appreciating the evidence on record, have given a finding of fact that the defendants had failed to establish that they were ever in possession of any portion of the suit property. The defendants placed reliance on agreement dated 30.4.1963. However, the R.S.A.No. 3397 of 2009 (O&M) 5 original of the said agreement was not proved on record nor any permission was sought to prove the same by way of leading secondary evidence. Both the Courts below have, thus, given a finding of fact that the plaintiff was in possession of the property in dispute. The said finding of fact cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 22, 2009 anita