RSA No.86 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.86 of 2010 (O & M) Date of Decision: 02.02.2011 Balbir Singh ……Appellant Versus Malkiat Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Kanhiya Lal, Advocate for Mr. Sandeep Bansal, Advocate for the appellant. Mr. Hitesh Sood, Advocate for respondent No.1. L.N. MITTAL, J (ORAL) Balbir Singh-defendant No.2, having failed in both the Courts below, has filed the instant second appeal. Respondent No.1-plaintiff Malkiat Singh filed suit against appellant and proforma respondent Nos.2 to 5. None is appearing for respondent No.3 to 5 in spite of service. Respondent No.2- Chanan Ram has since died. Appellant and respondent Nos.3 to 5 are sons of Chanan Ram-respondent No.2. Accordingly, Chanan Ram-respondent No.2 is sufficiently represented. Plaintiff is son of Hans Raj son of Baggu Ram. Chanan Ram-defendant No.1 was son of said Baggu Ram whereas defendant Nos.2 to 5 i.e. appellant and respondent Nos.3 to 5 are sons of Chanan Ram son of Baggu Ram. The plaintiff is thus nephew of defendant No.1 and cousin brother of the remaining defendants. RSA No.86 of 2010 (O & M) - 2 - The plaintiff alleged that he is owner in possession of western half share of 11 marlas land in suit in view of compromise dated 13.07.1997. However, defendants threatened to interfere in his possession thereon. Accordingly plaintiff sought permanent injunction restraining the defendants from interfering in possession of plaintiff over said western half share of 11 marlas land in question and from raising any construction in excess of the defendants’ remaining half share. Defendants controverted the plaint allegations. It was pleaded that the plaintiff tried to take forcible possession of the suit land wherein house of defendant No.2-appellant exists. The plaintiff dismantled some portion of western wall of the said house. He also caused injuries to defendant Nos.1 and 3 and wife of defendant No.2 for which FIR was registered. The instant suit is counter blast to the same. It was denied that plaintiff is in possession of any portion of the suit land. Defendant No.2 purchased portions of the suit land from Buta Ram etc. and constructed his house. The compromise was regarding other 11 marlas land of khasra No.108 and not regarding the suit land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Hoshiarpur vide judgment and decree dated 15.10.2004 decreed the plaintiff’s suit restraining the defendants from interfering in peaceful and lawful joint possession of the plaintiff over the suit land except in due course of law. First appeal preferred by defendant No.2 has been dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 18.08.2009. Feeling aggrieved, defendant No.2 has preferred the instant second appeal. RSA No.86 of 2010 (O & M) - 3 - I have heard learned counsel for the parties and perused the case file. Vide order dated 23.03.2010, notice of motion was issued only regarding following substantial question of law mentioned in sub- paragraph (b) of paragraph 13 of the grounds of appeal:- “Whether the learned Courts below have erred by decreeing the suit of the respondent for 11 marlas whereas the relief sought was only qua half share out of 11 marlas?” Learned counsel for the appellant reiterated that respondent No.1-plaintiff himself claimed western half share of the suit land, but the Courts below have decreed the suit regarding the entire suit land which could not be done. Learned counsel for respondent No.1 plaintiff responded to this contention by submitting that the suit may be decreed regarding western half share of the suit land and he has no objection to the same. In view of the aforesaid, judgments and decrees of the Courts below are modified and plaintiff’s suit is decreed for permanent injunction restraining the defendants from interfering in possession of the plaintiff over western half share of 11 marlas suit land as described in the plaint, except in due course of law. Appeal stands disposed of accordingly. (L. N. MITTAL) JUDGE 02.02.2011 A.kaundal