R.S.A. No. 389 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 389 of 2006 (O&M) Date of decision: 26.03.2009 Bahadur Singh ....appellant Versus Smt. Om Pati and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. D.S. Bali, Sr. Advocate, with Mr. Namit Gautam, Advocate, for the appellant. Mr. S.S. Dinarpur, Advocate, for respondents No. 1 to 8. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 3.10.2005 passed by the learned Courts below vide which the suit filed by the plaintiff/appellant for permanent injunction restraining the defendant/respondents from interfering in the peaceful possession of the plaintiff over the land measuring 24 kanals 17 marlas, has been ordered to be dismissed. The plaintiff brought a suit for permanent injunction claiming therein that he was co-sharer of a joint land, in which he had a share of 24 kanals 17 marlas. He claimed that he was in exclusive possession of 24 kanals 17 marlas of land and that his possession was being threatened by defendant/respondents. Therefore, the prayer for injunction was made on the ground that even though the plaintiff/appellant was co- R.S.A. No. 389 of 2006 (O&M) -2- sharer of the land in dispute, his established exclusive possession was proved, which entitled him to seek injunction even against other co- owners. The suit was contested wherein the claim/right of the plaintiff/appellant to be in possession was disputed by raising a plea that admittedly the suit land was joint property of the co-sharers, but by way of partition proceedings, the property stands partitioned and the area claimed to be in possession of the plaintiff/appellant did not fall to his share. The learned lower appellate Court upheld the decree passed by the learned trial Court by observing as under: - “However, it is pointed out that during the pendency of the suit, the joint land was partitioned by the revenue authority and mutation no. 699 Ex. D1 was sanctioned and attested thereon thereby allotting specific portion of land to the respective erstwhile co-owner/co-sharer. The suit land measuring 24 kanals 17 marlas had not come to the share of Waryam Singh and his legal heirs. It is pointed out at the very out set that after partition of the joint land, the suit for permanent injunction was not maintainable.” The learned counsel for the appellant contends that this appeal raises the following substantial question of law: - “Whether the learned Courts were justified in non- suiting the plaintiff/appellant on the basis of an order said to have been passed during the pendency of the suit by ignoring the principle of lis pendens?” In support of the substantial question of law, the learned counsel for the appellant contends that ownership and exclusive R.S.A. No. 389 of 2006 (O&M) -3- possession of the plaintiff/appellant was not in dispute on the date of filing of the suit, hence, he was entitled to retain the possession as the event which occurred during the pendency of suit could not be a ground to deny the relief, as the order of partition was hit by principle of lis pendens. This contention of the learned counsel for the appellant cannot be accepted. It is admitted case of the parties that the plaintiff/appellant was co-sharer of land in dispute, though in exclusive possession, therefore, his possession even established exclusive possession was subject to partition. Once it was proved on record that the partition had taken place and the property in dispute did not fall to the share of the plaintiff/appellant, the remedy with the plaintiff/appellant was to challenge the order of partition in accordance with law, but he could not claim injunction against implementation of order validly passed, without challenging it in accordance with law. The order of partition cannot be said to be hit by principle of lis pendens, as it is inherent right of the co- sharers to have their land partitioned in accordance with law, nor a suit for injunction restraining co-owner from seeking partition would be maintainable. The substantial question of law is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge March 26, 2009 R.S.