R.S.A.No.3429 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3429 of 2009 Date of Decision : 24.09.2009 Smt. Savitri Devi and others ...Appellants Versus Smt. Prem and another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Amit Jhanji, Advocate, for the appellants. HEMANT GUPTA, J. (ORAL) The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for permanent injunction to restrain the defendants from interfering in the possession of the plaintiffs was dismissed. As per the plaintiffs, an exchange took place between husband of defendant No.1 and plaintiffs in respect of 40 sq. yards of land vide registered deed dated 12.2.1987. As per the plaintiffs, these 40 sq. yards of land was used as Rasta, and that parties are in separate possession after partition of suit property. The stand of the defendants was that the parties in the suit are co-sharers in the suit property and no partition has taken place between the parties. The plaintiffs has sold considerable share out of the suit property in favour of the defendants. An exchange deed was also effected between the parties. The defendants are owners being purchaser of the suit property. The suit property is still joint, which has not been partitioned. R.S.A.No.3429 of 2009 2 The learned first Appellate Court has found that no evidence has been led by the plaintiffs to prove that partition has taken place and that the parties are in occupation of their respective shares. It also found that there is no proof of the allegation of the plaintiffs that the defendants want to encroach upon the suit property. In fact, it was found that the land falling to the share of the defendants is lying vacant. In respect of exchange deed dated 12.2.1987, it was held that the defendants are entitled to use the property of their share as their personal property, whereas the plaintiffs attribute the land as passage only. It was also found that the suit property is joint and the status of the parties is of co- sharers. Both the Courts have recorded concurrent finding of fact that the land is owned by the parties jointly and that the plaintiffs have failed to prove partition of the joint land. In fact, none of the issue framed pertaining to the exchange of the land. Since the parties are co-sharers in respect of joint land, the plaintiffs cannot claim exclusive right to use any part of the joint property. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 24.09.2009 (HEMANT GUPTA) Vimal JUDGE