R.S.A.No. 916 of 2004 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 916 of 2004 (O&M) Date of decision: 18.1.2011 Baldev Krishan and another ......Appellants Versus Ramesh Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.I.D.Singla, Advocate, for the appellants. Mr.P.S.Dhaliwal, Advocate for respondents. **** SABINA, J. Plaintiffs had filed a suit for permanent injunction that defendants be restrained from interfering in their peaceful possession. The case of the plaintiffs, in brief, is that plaintiffs No.1 and 2 were owners in possession of suit land as described in head note of the plaint. Plaintiff No.3 was legal heir of Kantha Ram @ Kunda Ram- co-sharer, and had come in possession of 4 kanals 8 R.S.A.No. 916 of 2004 (O&M) 2 marlas of land as a co-sharer. Devki Devi, other co-sharer in the suit land, had sold her share to the plaintiffs. The plaintiffs had raised construction over a portion of the suit land and the defendants had no concern with the same. Defendants, in their written statement, denied the contentions in the plaint. It was averred that a suit titled Raghu Nath vs. Pawan Kumar qua the suit land was already pending. Plaintiffs were not in possession of the suit property and had no concern with the same. The suit land had been mortgaged with possession with defendants No.3 to 6. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to injunction as prayed for? OPP. 2. Whether the property in dispute has already been partitioned? OPP 3. Whether the property in dispute has been mortgaged, if so whether it was a valid mortgage ? OPD 4.Whether the property in dispute has not been redeemed so far ? OPD 5. Whether the suit of the plaintiff is not maintainable ? OPD 6. Whether the defendants are entitled to special costs ? OPD 7. Relief. R.S.A.No. 916 of 2004 (O&M) 3 Vide judgment and decree dated 18.9.2002 trial Court dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal and the same was allowed by the Additional District Judge, Mansa vide judgment and decree dated 31.1.2004. Hence, the present appeal by the plaintiffs. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. As per the copy of jamabandi, Ex.PX, the plaintiffs had got the suit land in partition proceedings. Ex.P-1 is the copy of judgment passed in RSA No.1577 of 1999 titled Mewa Singh and others vs. Baldev Krishan and others. A perusal of the said judgment reveals that Mewa Singh and others had filed a suit for permanent injunction against Baldev Krishan and others restraining them from taking forcible possession of the suit land measuring 17 kanals 4 marlas. The suit filed by the plaintiffs was allowed and it was held that the plaintiffs could not be dispossessed in pursuance of partition proceedings in which they were not party till the land was not redeemed. In appeal, the said judgment and decree passed by the trial Court were set aside by Additional District Judge, Mansa vide judgment and decree dated 18.3.1999. This Court upheld the judgment and decree passed by the Additional District Judge vide Ex.P-1. It was further held that Baldev Krishan had created mortgage, which was in excess of his R.S.A.No. 916 of 2004 (O&M) 4 share in the joint property. Other co-sharers were not bound by the creation of mortgage in excess of his share by Baldev Krishan. Thus, the plaintiffs, who were in possession of the suit property on the basis of partition proceedings on 17.4.1999, could not be dispossessed from the suit land. In these circumstances, learned Additional District judge had rightly decreed the suit of the plaintiffs for permanent injunction. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 18, 2011 anita