1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 480 of 2008 (O&M). Date of Decision: 17.3.2009 *** Joginder Kaur .. Appellant VS. Sukhchain Singh .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. M.K. Dogra, Advocate for the appellant. *** ARVIND KUMAR, J. The suit of the plaintiff-appellant for permanent injunction restraining the defendant-respondent from raising any construction and changing the nature of land has been dismissed by the learned Trial Court as well as Lower Appellate court. As a consequence, she has filed the instant appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity, “the Code”). There is no dispute to the fact that the plaintiff and defendant are co-sharers in the suit property and the plaintiff has been found to be not in physical possession of the suit property. Accordingly, while relying upon various judicial pronouncements, it has concurrently been held that the remedy of co-sharer out of the possession of the property is to seek partition and not an injunction restraining the co-owner in possession from doing any act in the exercise of his right to every inch of it which he is doing as a co- owner. Having heard the learned counsel at some length I am of the considered view that no interference of this Court is warranted in the judgment and decree passed by the learned Lower Appellate Court. The findings are based on cogent evidence, which has been analyzed in detail by the Courts below. It is well settled that this Court cannot, on re- appreciation of evidence, record a conclusion different than the one 2 recorded by the Courts below and the learned Lower Appellate Court is considered to be the best judge of the facts as well as law, which, while considering the undertaking given by the learned counsel for the respondent regarding removal of construction/ malba, if the site on which the defendant-respondent is going to raise construction fallen to the share of plaintiff in the partition proceedings, rightly modified the judgment and decree of the learned trial court by observing that if the respondent raise any sort of construction thereon, the same will be subject to the outcome of the final partition proceedings. Even otherwise, I am of the view that the question of possession is a pure question of fact and ordinarily it would not give rise to a question of law. Therefore, there is no merit in this appeal and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE March 17,2009 Jiten