R.S.A. No. 2665 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2665 of 2007 Date of decision: 25.05.2009 Kulwanti Devi ....appellant versus Padam Naranjan and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sumeer Rathore, Advocate, for Mr. Sumeet Goel, Advocate, for the appellant. Mr. Vijay Lath, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 5.4.2007 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 and further for declaration to challenge the R.S.A. No. 2665 of 2007 -2- sale deed executed in favour of defendant No. 3, stands dismissed. The plaintiff/appellant filed a suit on the pleadings, that Pohu Lal father of the husband of the plaintiff/appellant and Ram Rakha Mal, Shadi Lal, Durga Dass and Dina Nath were the owners in possession of the suit property along with other properties. During his lifetime Pohu Lal is said to have executed a 'Will' in favour of his wife and sons. After his death, mutation was sanctioned in favour of sons of Pohu Lal and his wife, as per 'Will'. It is pleaded that during his life time, Pohu Lal partitioned his property situtated within the lal lakir, including the suit land amongst his sons, and all of his sons were put in separate possession of the suit land. It is the case set up by the plaintiff that disputed property was given to the husband of the plaintiff/appellant, who executed 'Will' in favour of the plaintiff/appellant. Consequently, she claimed herself to be the owner in possession of the suit property. The suit was contested. Besides preliminary objections, averments made on merit were disputed. The learned Courts below on appreciation of evidence, recorded a concurrent finding of fact that the plaintiff is not the exclusive owner in possession of the suit property, therefore, was not entitled to injunction. It was the defendants who were in possession of the suit property where they had raised construction. The suit was held to be maintainable. It was also held that the plaintiff could not be said to have come to Court with unclean hands. The question of locus standi was decided in favour of the plaintiff/appellant. It was also held that the plaintiff was not estopped from filing the present suit. The reason for rejecting the claim of the plaintiff/appellant was, that the partition deed R.S.A. No. 2665 of 2007 -3- set up by the plaintiff/appellant was held to be not admissible in evidence for want of registration. The learned Courts below were pleased to hold that partition deed Ex. P-2 was required to be registered, as it was not a memorandum of partition. The learned Courts below further held that though the document was said to be 30 years old, but the plaintiff has failed to prove the same by examining any attesting witness even though it was a disputed document. The learned Courts below, therefore, on appreciation of evidence, have come to the conclusion that as the plaintiff was not in possession of the property in dispute, the suit for injunction, therefore, was not competent. The learned counsel appearing on behalf of the appellant contends, that the appeal raises following substantial questions of law: - "1. Whether the plaintiff/appellant was entitled to alternative relief of decree for possession? 2. Whether the learned Courts below wrongly rejected the document Ex. P-2?" In support of the substantial questions of law, the learned counsel for the appellant contends that in view of Ex. P-2 i.e. partition deed, plaintiff was owner of the property in dispute and, therefore, sale deed executed in favour of defendant No. 3 was not binding on her rights. Plaintiff/appellant being owner was entitled to decree for possession, in view of the fact that she was held to be not in possession. The plea of the learned counsel for the appellant cannot be accepted. The learned Courts below have rejected the title of the plaintiff/appellant by holding that Ex. P-2 was not admissible in evidence. The contention that Ex. P-2 has been wrongly rejected, cannot R.S.A. No. 2665 of 2007 -4- be accepted as admittedly partition deed was not registered. Furthermore, the plaintiff/appellant failed to prove the partition deed by leading evidence. Sale deed was executed in the year 1991 i.e. during the life time of Jugal Kishore husband of the plaintiff/appellant, but he chose not to challenge the sale deed during his lifetime. The suit has been filed in the year 2000 i.e. after 9 years of the execution of the sale deed in favour of defendant No. 3, who is not only in possession of the suit property, but had also raised construction thereon. The learned Courts below, therefore, rightly dismissed the suit filed by plaintiff/appellant. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 25, 2009 R.S.