R.S.A. No. 2207 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2207 of 2007 (O&M) Date of decision : 19.2.2009 Pala Ram ....Appellant Versus Puran Chand & another ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Madan Pal, Advocate for the appellant. ..... MAHESH GROVER, J. This is defendant's appeal directed against the judgments of the learned trial Court dated 15.11.2006 and that of the first Appellate Court dated 22.2.2007. A suit for injunction was filed by the plaintiff/respondent No.1 to restrain the defendant/appellant and respondent No.2 from interfering in his peaceful possession over the suit land. It was pleaded that he along with his brother Satpal was owner in possession of the land measuring 40 kanals which was originally owned by Nikku Ram, their father. After his death, he along with his brother, mother and sisters inherited the entire property and after the death of his mother, her share also devolved upon them. Two sisters R.S.A. No. 2207 of 2007 (O&M) -2- of the plaintiff/respondent No.1 also executed release deed in his favour and other two sisters also executed release deed in favour of Satpal. It was pleaded that in this manner he was owner in possession of land measuring 18 kanals 14 marlas and was in actual possession of Rect.No.104, Killa Nos.17, 23, Rect.No.137, Killa No.3 and the defendants (appellant and respondent No.2 herein) had no right, title or interest in the suit land. The defendant/appellant contested the suit and pleaded that the plaintiff/respondent No.1 had got no concern with the suit land as he was only having 5 kanals of land which was lying vacant and 35 kanals of land was in his cultivating possession. It was pleaded that the legal heirs of Nikku Ram had agreed to sell the land to him and received Rs.8 lakhs in terms of the agreement dated 29.12.1999 and on the same day they also received Rs.2 lakhs from him vide another agreement to sell. The possession of the suit land was also handed over to him. On merits, it was pleaded that the plaintiff/respondent No.1 was owner to the extent of 5 kanals of land and the remaining land was owned by other legal heirs of Nikku Ram, as prior to his death he was owner of the suit land. Factum of mutation having been entered in favour of the plaintiff/respondent No.1 and his brother Satpal by their sisters was not disputed. It was further stated that Sat Pal and his four sisters had agreed to sell their shares in his favour and a sum of Rs.10 lakhs was received vide agreement dated 29.12.1999. Both the parties went to trial on the following issues :- 1. Whether the plaintiff and his brothers are in R.S.A. No. 2207 of 2007 (O&M) -3- possession of suit property as owner?OPP 2. Whether if issue No.1 is proved then plaintiff is entitled to relief as prayed for?OPP 3. Whether plaintiffs has not approached the court with clean hands, if so its effect?OPD 4. Whether plaintiff has no cause of action to file the suit?OPD 5. Whether plaintiff has no locus standi to file the present suit?OPD 6. Whether the plaintiff is estopped by his own act and conduct from filing the suit?OPD 7. Relief. The learned trial Court concluded all the issues in favour of the plaintiff/respondent No.1 and decreed the suit. In appeal, the findings were partially upset and it was held that the plaintiff/respondent No.1 was only entitled to seek restraint against the defendants from interfering in his joint possession to the extent of his share measuring 18 kanals 4 marlas in the total land measuring 40 kanals, except in due course of law. Learned counsel for the appellant has assailed the aforesaid finding recorded by the first Appellate Court by way of present regular second appeal to contend that the finding recorded is erroneous and perverse and warrants interference. After hearing the learned counsel for the appellant and on perusal of the impugned judgment, it transpired that Ex.P2 is the copy of mutation which was entered after the death of Nikku Ram and the R.S.A. No. 2207 of 2007 (O&M) -4- land measuring 40 Kanals including the suit land was devolved upon his widow Sudho Devi, his sons Puran Chand and Sat Pal and five daughters Purni Devi, Darshani Devi, Bimla Devi, Shanti Devi and Dhano Devi in equal shares, i.e. 5 kanals each. The revenue record is also to the same effect showing 100 share of Smt. Sudho Devi, 320 share of Puran Chand, 100 share of Satpal, 100 share of Bimla Devi, 30 share of Shanti Devi, 50 share of Dhanno Devi and 100 share of Purni Devi out of the total 800 share in the entire land. Puran Chand plaintiff/respondent No.1 had sought the injunction against Pala Ram appellant and Mohinder Singh proforma respondent in respect of the suit land measuring 18 kanals 14 marlas. The learned trial Court had restrained the respondents from interfering in the possession of the plaintiff/respondent No.1 over the entire suit land measuring 40 kanals. The plaintiff/respondent No.1 was never found in possession of any specific portion of the land measuring 18 kanals 14 marlas and he was merely a co-sharer in the entire land. There is no evidence on record that the land had ever been partitioned. He was having 5 kanals of land as per his share on the death of Nikku Ram and since his sisters had also suffered release deeds in his favour, therefore, he was having a total of 18 kanals 14 marlas of land and not 40 kanals of land. The error committed by the learned trial Court was rectified by the first Appellate Court. No perversity is said to have been committed by the first Appellate Court while recording this finding. No substantial question of law arises, as it is a mere appreciation of evidence which has been done correctly. No ground to interfere. R.S.A. No. 2207 of 2007 (O&M) -5- Dismissed. 19.2.2009 (MAHESH GROVER) JUDGE dss