R. S. A. No. 4041 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4041 of 2009 Date of Decision : May 05, 2011 Joga Singh .... Appellant Vs. Harbans Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sarju Puri, Advocate for the appellant. Mr. C. L. Verma, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Plaintiff Joga Singh having lost in both the courts below has filed the instant second appeal. Plaintiff-appellant alleged that he is co-sharer in possession of the suit land measuring six kanals along with other co-sharers as the same has not yet been partitioned, but the defendant, by raising construction over specific portion of the suit land, wants to dispossess the plaintiff therefrom and wants to oust him. Accordingly, the plaintiff sought permanent injunction restraining the defendant from doing so. R. S. A. No. 4041 of 2009 2 The defendant inter alia pleaded that he, along with three others, purchased five marlas land out of the suit land from plaintiff's own brother Dilawar Singh vide sale deed dated 09.10.1996 and possession of the said specific portion of five marlas was delivered to the vendees including the defendant and they are in possession thereof. They have purchased this specific portion for using it as a passage for their other land of khasra no.9//3/1, which had no other passage and accordingly, defendant and other vendees are using the said five marlas land as passage for their aforesaid land. Plaintiff is not in possession thereof. Plaintiff cannot seek injunction against the defendant, who is also a co-sharer. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Balachaur, vide judgment and decree dated 01.02.2007, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Nawanshahar, vide judgment and decree dated 13.06.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that plaintiff being co-sharer in the entire suit land measuring six kanals, cannot be ousted therefrom by defendant by usurping portion thereof by raising construction. The contention apparently very attractive, is in fact devoid of R. S. A. No. 4041 of 2009 3 merit in the facts and circumstances of the instant case. Plaintiff admitted in the witness-box that he himself has raised construction in part of the joint suit land. The plaintiff himself has thus usurped a part of the joint suit land, and therefore, plaintiff cannot seek injunction against the defendant from exclusively using five marlas land purchased by defendant and three others from plaintiff's own brother, who was also co-sharer in the joint suit land. Secondly, the plaintiff in the plaint concealed the material fact that he himself had raised construction over part of the joint suit land and had usurped the same exclusively. On account of this concealment of material fact also, the plaintiff is not entitled to discretionary relief of permanent injunction. Thirdly, the plaintiff had the option of seeking partition of the joint suit land. Till partition, defendant can use the portion purchased by him from the plaintiff's brother. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below non-suiting the plaintiff-appellant does not require interference in second appeal as the said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. May 05, 2011 ( L. N. MITTAL ) monika JUDGE