RSA No.4730 of 2009 (O&M) ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4730 of 2009 (O&M) Date of decision:15.10.2010. Mohinder Singh …Appellant Versus Tarlochan Singh and others …Respondents CORAM : HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Deepak Arora, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. Only plaintiff No.1 is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiffs for permanent injunction to restrain the defendant from removing earth from the suit property for the purpose of preparing bricks or for any other purpose by himself or through some other person so as to cause pits by removing the soil and causing harm to the interest of the plaintiffs who are owners of 8/21 share out of the suit property, more than the share owned by the defendant, i.e. 1/3 share in the land measuring 08 Kanals 14 Marlas, comprised in Khata No.138/325, Khasra No.21//4/2 (01-18), 5(5-11) and 22//1/1(2-5), situated in the revenue estate of village Mahal Khurd, Tehsil and District Nawanshahr, has been dismissed. As a matter of fact, the Courts below had found the suit filed by the plaintiffs to be totally frivolous and dismissed it with costs. The finding recorded by the First Appellate Court is that out of the land measuring 08Kanals 14 Marlas, the share of the defendant comes to 02 Kanals 18 Marlas being 1/3rd. Plaintiff Mohinder Singh has admitted in his cross-examination that the defendant has given his share for digging earth to a brick-kiln owner and has stated that he would not have any - 1- RSA No.4730 of 2009 (O&M) ****** objection if the defendant remove the earth from the land falling to his share. He also admitted that the defendant is not interfering in the possession of the plaintiffs on the land to the extent of his share. The learned First Appellate Court has then found that the plaintiffs have not come to the Court with clean hands as there is evidence that the defendant had already dug up 2 ½ feet to 3 feet of land when the suit was filed but it was not disclosed by the plaintiffs who had filed the suit for permanent injunction only for the purpose for getting the injunction against the defendant to restrain him from removing the earth. It was also found that PW2 had admitted in his cross-examination that the defendant has given only his share to the brick-kiln owner for digging earth which has already been dug up to the extent of 1 feet when the suit was filed. Faced with these findings, learned counsel for the appellant has submitted that since both the parties are co-sharers, therefore, the defendant should not have been allowed to cause pits by removing earth till the land is partitioned. I have heard learned counsel for the appellant and perused the available record. The finding recorded by the Courts below are in accordance with the evidence led by the parties from which it is apparent that the suit is filed by the plaintiffs in order to harass the defendant because it has come in the evidence of the plaintiffs that the defendant has been digging earth from the land which has fallen to his share and the plaintiffs have also given their land on rent. It has also come on record that the defendant had already dug up the land to the extent of 2 ½ feet to 3 feet and also admitted that the level of the entire suit land is the same even after the alleged digging. In view of the findings recorded by the Court below and in the absence of any substantial question of law as envisaged in Section 100 of the Civil Procedure Code, 1908, I do not find any merit in the present appeal and hence, the same is hereby dismissed, however, without any order as to costs. October 15, 2010. ( RAKESH KUMAR JAIN ) Vinod* JUDGE - 2-