RSA No.2405 of 2007(O &M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 15 , 2010 1. RSA No.2405 of 2007(O &M) Tripati Khandelwal ...... Appellant Versus Mahabir Parshad and another ...... Respondents 2. RSA No. 2845 of 2007(O&M) Tripati Khandelwal ...... Appellant Versus Mahabir Parshad ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.M.L.Sharma, Advocate for the appellant. Mr.Kulbhushan Sharma , Advocate for the respondent. **** 1. Whether Reporters of local papers 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. These appeals arise out of cross suits instituted by the parties against each other in respect of the same property. In both the suits the case of the appellant is that the property in dispute is a joint Mushtarka Gali while the case of the respondent was that the said property was his private property and that was not a joint Gali. In both the cases (independently tried) the stand of the respondent was believed. In RSA No.2405 of 2007 the following questions have been proposed:- RSA No.2405 of 2007(O &M) 2 i) Whether the gandi gali is mushtarka malkan and is of a joint, if so,whether the appellant has right over it? ii)Whether the findings recorded by the courts below is against the facts and circumstances of the case? iii)Whether the courts below have judicially appreciated the oral as well as the documentary evidence? iv)Whether the appellant has right to file the suit for permanent injunction and mandatory injunction? The following questions have been proposed in RSA No.2845 of 2007:- i) Whether two separate suits can be filed for same property on same cause of action? ii)Whether without taking permission for filing a fresh suit, which is required as per Order 23 rule 1(3) CPC, 1908, when name of that party was given up on same cause of action in between same parties, another fresh suit can be filed? It would be seen that the questions proposed in RSA No. 2405 of 2007 are pure questions of fact. Learned counsel has taken me through the findings of the Courts below recorded thereon but has not been able to persuade me that the said findings are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Consequently the questions proposed have to be held against the appellant. As regards RSA No. 2845 of 2007, the questions proposed in this RSA will be rendered academic since in the accompanying appeal the questions proposed have been held against the appellant. In this view of the matter both these appeals as well as applications for stay are dismissed. No costs. (AJAY TEWARI) JUDGE February 15 , 2010 sunita