RSA No.2501 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2501 of 2005 (O&M) Date of Decision: September 18, 2009 Ankush Kumar and another ...........Appellants Versus Prem Singh and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amarjit MarkanAdvocate for the appellants Dr.Surya Parkash, Advocate for respondent No.1 Mr.Raman Sharma, Advocate for respondent No.2 ** Sabina, J. Plaintiffs filed a suit for injunction. The said suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Tohana vide judgment and decree dated 26.7.2004. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by the Additional District Judge, Fatehabad vide judgment and decree dated 10.2.2005. Hence, the present appeal by the plaintiffs. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 3 of its judgment reads as under:- “ 2.The plaintiffs filed this suit on the averments that they were owners in possession of land comprising rectangle No.25, Khasra No. 16/1/1/2 (2-14) and 1/2 share of land comprised in rectangle No. 25 Khasra No. 26(0-9) total measuring 2 Kanals 18-1/2 marlas situated in Jakhal Tehsil Tohana District Hisar (now district Fatehabad). The plaintiffs claimed that they had purchased the aforesaid land vide two separate sale deeds dated RSA No.2501 of 2005(O&M) 2 1.12.1988 and 2.3.1989. The defendants are influential person and they are bent upon to interfere in peaceful possession of the plaintiffs and so there was no other option but to file the present suit seeking a decree of injunction against the defendants. 3. In the joint written statement filed by the defendants it was denied that the plaintiffs were owners or in possession of the suit property. It was pleaded that defendant No.2 Smt. Deep Kaur had purchased land measuring 1 Kanal 14 Marla out of Khasra No.16/1/1/2 and 0.2 Marlas out of Khasra No.26 vide sale deed dated 27.2.1991 and defendant Amrik Singh had purchased 1 Kanal out of Khasra No.16/1/1/2 vide sale deed dated 15.5.1990 and the defendants were in possession of the suit property as owners thereof and the plaintiffs had nothing to do with the same. It was further pleaded that the present suit was barred by principles of resjudicata and the plaintiffs had not come to the court with clean hands as they have suppressed the true and material facts from the court. The plaintiffs had filed an earlier suit about the suit land and the same was dismissed as withdrawn on 13.3.1995. The defendants also asserted in their pleadings that this suit was barred by provisions under Order 2 Rule 2 CPC and was liable to be dismissed for misjoinder and non-joinder of necessary parties On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP RSA No.2501 of 2005(O&M) 3 2. If issue No.1 is proved, whether the plaintiffs are entitled for the injunction as prayed for?OPP 3. Whether the suit of plaintiffs is not maintainable?OPP 4. Whether the plaintiffs are estopped by their own act and conduct to file the suit ?OPD 5. Whether the suit of plaintiffs is liable to be dismissed on resjudicata?OPD 6. Whether the plaintiffs have not come to the court with clean hands ?OPD 7. Whether the suit is liable to be dismissed under the provisions of Order 2(2) of CPC?OPD 8. Whether the suit is bad for non joinder and misjoinder of necessary parties?OPD 8. Relief.” After hearing the learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Plaintiffs had filed the suit for permanent injunction restraining the defendants from interfering in their peaceful possession over the suit land. Both the Courts below, after appreciating the evidence on record, held that the parties were co-sharers in the suit land. Admittedly, the suit property is in exclusive possession of the defendants. In these circumstances, the Courts below rightly held that the decree for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiffs could not be granted as the plaintiffs were not in possession of the suit property. Learned counsel for the appellants, during the pendency of RSA No.2501 of 2005(O&M) 4 this appeal, has moved an application for permission to amend the plaint and add the relief of permanent injunction restraining the defendants from changing the nature of the suit land by raising any sort of construction upon it. The said application, at this stage, is liable to be dismissed because the plaintiffs should have claimed all the necessary relief before the trial court so that the parties could have led evidence accordingly. Even otherwise, defendants, who are in exclusive possession of the joint holding, can raise construction for proper enjoyment of the property. Mere making of construction or improvement in the common property does not amount to ouster of other co-sharers from the suit property by a co-sharer who is in exclusive possession. Moreover, it cannot be said that by raising construction the value of the property or utility of the property would be diminished. The remedy open to the plaintiffs was to get the suit land partitioned. No substantial question of law arises in this regular second appeal which would warrant interference by this Court Accordingly, this appeal is dismissed. ( Sabina ) Judge September 18, 2009 arya