RSA No.157 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.157 of 2007 (O&M) Decided on :10.11.2009 Vimal Jain & another ... Appellants versus Vijay Kumar ...Respondent CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Ashok Aneja, Advocate for the appellants. Mr. A.K.Khunger, Advocate for the respondent. **** 1.Whether Reporters of local newspapers 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. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below restraining the appellant from raising any construction over the land in dispute. Both the Courts below came to the conclusion that the land was joint and restrained the appellant from either making any construction on the land in dispute or alienating any specific portion of the land. On 13.10.2009, following order was passed: “On 27.05.2009, the following order was passed: Learned counsel for the appellant states that plaintiff-respondent had filed a suit in which he claims RSA No.157 of 2007 (O&M) -2- that the possession of the appellant and respondent was joint as co-owners and co-sharers. During the course of arguments before this court, he has referred to the testimony of the plaintiff-respondent wherein he has stated as follows: “It is correct that all the co-sharers are living separate and they constructed their respective house by spending their own funds. X x x x x. All the co-sharers are in possession of their specific possession.” It is thus his contention that in view of the categoric admission of the plaintiff-respondent himself, the findings recorded by both the courts below are perverse. Both the courts have held that there was no partition and the property continued to be joint. After hearing learned counsel for the parties, I am of the considered opinion that prima facie it appears that the parties were in settled possession of their respective shares wherein some construction had also been raised. However, learned counsel for the respondent states that records be requisitioned in order to establish the veracity of statement and contention of the learned counsel for the appellant. Accordingly, let records be requisitioned for RSA No.157 of 2007 (O&M) -3- 14.09.2009. At this stage, learned counsel for the appellant states that he has been restrained from raising construction despite the fact that there is clear admission by the respondent himself that each of the co-sharer was in settled possession in the suit property. Having regard to the statement of the plaintiff himself, I am of the considered opinion that the plaintiff-respondent may raise construction, if he so desires on the area which is in his possession at his own risk and responsibility which shall obviously be subject to the decision of this appeal. Learned counsel for the respondent states that he may be allowed one opportunity to inspect the record. He is not in a position to deny that in case the assertion made in the above mentioned order is correct, he would have no objection if the appeal is allowed. Adjourned to 10.11.2009.” Learned counsel for the respondent has fairly stated that the assertion made in the order quoted above is correct. However, he has argued that by this assertion alone the respondent cannot be non-suited since it has been proved that the land continues to be joint. It is not disputed that despite the pendency of this litigation, no proceedings for partition have been RSA No.157 of 2007 (O&M) -4- initiated by any party. In these circumstances, it would be in the interest of justice if this appeal is allowed in terms of order dated 13.10.2009 with the clarification that the appellant would not claim any equity with regard to his construction in any partition proceedings. It is further made clear that the appellant would not be at liberty to alienate more than his share in the partition. Consequently, this appeal is allowed. Since the main case has been decided, all the pending civil miscellaneous applications if any, stand disposed of. November 10, 2009 (AJAY TEWARI) sonia JUDGE