CM No.4480-C of 2008 & RSA No.1445 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.4480-C of 2008 & RSA No.1445 of 2008 Decided on : 23.10.2009 Dharam Singh & others ... Appellants versus Tara Chand ...Respondent CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. S.K.Sharma, Advocate for the appellants. Mr. Kulvir Narwal, Advocate for respondent. 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below, decreeing the suit of the respondent-plaintiff for mandatory injunction, directing the appellants to vacate his house. The following questions have been proposed: i) Whether the findings of the ld. Court below with regard to the partition of the joint property between the parties is altogether wrong and perverse to the material available on record? ii)Whether a suit for mandatory injunction for recovery of possession is maintainable against a person who CM No.4480-C of 2008 & RSA No.1445 of 2008 -2- is in established long possession over the property? iii)Whether without claiming declaration with regard to right title and interest in the suit property, a decree for mandatory injunction for delivery of vacant possession of the house can be passed in favour of the plaintiff? iv)Whether any incidental findings recorded in a earlier litigation between the parties with regard to different cause of action and subject matter is binding in subsequent litigation? v)Whether joint property can be vaguely divided among co-sharers without partitioning the same by metes and bounds? Both the courts below have primarily relied on a earlier suit, which was filed by the respondent against the appellants whereby he had pleaded that he was the owner of the house in dispute and prayed that the appellants should be restrained from raising any construction on a joint passage which was the only mean of access to his house. A site plan was also filed with that plaint. The appellants allowed that suit to be decreed ex parte. On the basis of that ex parte decree, both the Courts below have held that now the appellants could not take the plea that the respondent was not the owner. In this view of the matter, question No.(iv) proposed above has to be decided against the appellants. Once this CM No.4480-C of 2008 & RSA No.1445 of 2008 -3- seminal question is decided against the appellants and it is held that the respondent was the owner of the house in dispute, the other peripheral questions raised by the learned counsel for the appellants, do not arise. Consequently, this appeal and application for stay are dismissed. October 23, 2009 (AJAY TEWARI) sonia JUDGE