R.S.A. No. 1787 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1787 of 2009 (O&M) Date of decision: 29.04.2009 Bachhan Singh ....appellant versus Mahabir Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sunil Panwar, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 5218-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 138 days in re-filing the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 138 days in refiling the appeal is condoned. R.S.A. No. 1787 of 2009 This regular second appeal is directed against the judgment and decree dated 26.7.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant seeking injunction against defendants No. 1 and 2 from interfering in the possession of the plaintiff/appellant has been ordered to be dismissed. The plaintiff/appellant brought a suit claiming decree for R.S.A. No. 1787 of 2009 (O&M) -2- permanent injunction against defendants No. 1 and 2, on the pleadings that the plaintiff was in possession of the suit property, which was owned and possessed by the plaintiff. It was also the case of the plaintiff/appellant that defendant No. 3 had sold the property to defendants No. 1 and 2, but the sale deed could not affect his right, as defendant No. 3 had sold the land in excess of his share. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that defendant No. 3 had not sold the property in excess of his share. It has also been noticed, that even at the time of registration of sale deed, objections were raised by the plaintiff/appellant to the registration of sale deed on a similar plea. On inquiry got conducted by the Registrar, it was found that the sale was not beyond the share of defendant No. 3 and it was only thereafter, that the sale deed was registered. Be that as it may, the facts are totally irrelevant, as the learned Courts below have non-suited the plaintiff/appellant on the ground that being a co-sharer in the property, he was not entitled to seek injunction against other co-sharers. The learned counsel for the appellant contends that the appeal raises the following substantial question of law: - "Whether the learned Courts below were justified in non- suiting the appellant, even though, the plaintiff/appellant being co-sharer was in exclusive possession of the land not in excess of his share in the joint holding, therefore, was entitled to protect his possession from forcible interference?" In support of the substantial question of law, the learned R.S.A. No. 1787 of 2009 (O&M) -3- counsel for the appellant contends, that there is no absolute bar for a co- sharer to seek injunction against other co-sharers, provided he is able to prove his established possession in exclusion to other co-sharers. Though, the contention raised by the learned counsel for the appellant cannot be disputed, but this contention does not arise for consideration in this apepal, as admittedly the possession claimed by the appellant was merely on the plea that he has put some stones over the land in dispute, which the defendant/respondents claimed to be their. The plaintiff/appellant has not been able to prove his exclusive established possession over the property as a co-sharer in exclusion to other co-sharers. The learned Courts below, therefore, rightly held that no injunction against co-sharer was competent, and dismissed the suit. In the facts and circumstances of the case, substantial question of law is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge April 29, 2009 R.S.