Regular Second Appeal No.1158 of 2009 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No.1158 of 2009 (O&M) Date of Decision: December 21, 2010 Baldev Singh ---Appellant versus Amar Singh ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Tribhuwan Singla, Advocate, for the appellant Mr.K.S.Chahal, Advocate, for the respondent *** GURDEV SINGH, J. This second appeal has been preferred by the appellant- plaintiff, Baldev Singh, who filed suit for permanent injunction restraining the respondent-defendant, Amar Singh, restraining him from interfering in his possession over the property in dispute, consisting of two plots, detailed in the heading of the plaint. His suit was dismissed by Civil Judge(Junior Division), Barnala, vide judgment and decree dated 6.12.2006. He preferred the first appeal against that judgment and decree, which was dismissed by Additional District Judge, Barnala, vide judgment and decree Regular Second Appeal No.1158 of 2009 -2- dated 9.1.2009. Feeling aggrieved, he preferred this second appeal challenging those judgments and decrees. The case of the plaintiff is that the defendant is his brother and the suit property was owned by their father, Kehar Singh. An oral family settlement was entered into between them about 40 years back in which the suit property had fallen to his share. He erected boundary wall, installed a gate and constructed mangers in one of the plot and the other plot is being used for storing manure. In the said family settlement, the defendant was given one Haweli constructed in 04 Biswas of land. Now, the defendant is forcibly interfering in his possession and therefore, he filed the suit for permanent injunction. The suit was contested by the defendant. In his written statement he denied the contentions of the plaintiff and inter alia pleaded that he is coming as owner in possession of the property in dispute to the extent of 1/4th share and is recorded as such in the jamabandi for the year 1998-99. No such family settlement was effected between them. The plaintiff has no locus standi nor any cause of action to file the present suit and the same is not maintainable in the present form. On the pleadings of the parties, issues were framed by the trial court and they were called upon to produce their evidence in support of their respective cases. After going through the evidence so produced on the record and hearing counsel on their behalf, the suit of the plaintiff was dismissed by the trial court. I have heard counsel for the parties. It has been submitted by the counsel for the plaintiff that the plaintiff produced evidence before the trial court to the effect that the Regular Second Appeal No.1158 of 2009 -3- defendant himself filed a suit for possession of the property in dispute and thus, it has been admitted by the defendant that the plaintiff is coming in possession thereof. Even if the plea of the defendant that he is a co-sharer in this property, is accepted, even then, the suit of the plaintiff should have been decreed for permanent injunction as it is well settled proposition of law that a co-sharer in possession can protect the same against other co- sharer. According to him, substantial question of law arises in the present appeal in view of the submissions so made. On the other hand, it has been contended by the counsel for the defendant that the defendant never admitted the plaintiff to be in exclusive possession of the property in dispute and the suit was filed for possession by way of partition. He also submitted that when the defendant is taking the possession of the suit property through a Court of Law, the plaintiff cannot maintain a suit for permanent injunction. It was not disputed, after the evidence produced before the trial court was referred to by the parties, that the suit had been filed by the defendant for possession of the joint properties, including the property in dispute, by way of partition. Thus, he is trying to take possession, if any, through a Court of Law. When such is the position, it cannot be said that the plaintiff is entitled to the relief of permanent injunction. No substantial question of law arises in the present appeal and the same is dismissed accordingly. (GURDEV SINGH) JUDGE December 21, 2010 PARAMJIT