RSA No. 1551 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 1551 of 2009
Decided on :21 -04-2009
Om Parkash
....Appellant
VERSUS
Ram Singh and others
....Respondents
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. S.S.Godara, Advocate for the appellant
MAHESH GROVER, J
This is an appeal preferred by one of the plaintiffs directed
against the judgments of the learned Trial Court dated 27.11.2006 and that
of the learned First Appellate Court dated 29.1.2009.
The appellant alongwith two other persons namely Prithvi
Singh and Jai Singh filed a suit for permanent injunction to restrain the
defendants from interfering in their land in which they were in joint
cultivating possession. It is pleaded that the plaintiffs alongwith two
persons namely Ram Singh and Surinder Singh arrayed as defendants no. 1
and 4 who are real brothers are joint owners cum lessees in possession of
the suit property and that defendant no.1 was abusing his position as
Secretary, Market Committee, Bhiwani to dispossess the plaintiffs from the
suit property.
The said respondent no.1 filed a written statement admitting the
relationship but denied the other averments made in the plaint. It was
pleaded that all the brothers with the intervention of the relatives have
RSA No. 1551 of 2009 2
entered into a written settlement on 7.6.1992 and thereafter they continued
to be in possession of their respective shares and in a sense a partition had
been effected inter se between them.
Both the parties went to trial on the following issues:-
1. Whether the plaintiffs and defendant no. 1 are in joint
possession in the column of cultivation of the suit land as
permanent lessee as alleged in the plaint?OPP.
2. Whether the plaintiff is entitled for permanent injunction as
prayed for?OPP.
3. Whether the suit of the plaintiff is wrong, against law and
facts and is liable to be dismissed?OPD.
4. Whether the suit of the plaintiff is liable to be dismissed in
the present form?OPD.
5. Whether the plaintiffs have no locus standi to file the present
suit?OPD.
6. Whether the plaintiffs have not come to court with clean
hands, if so to what effect?OPD.
7. Whether the suit of the plaintiff is false and frivolous?OPD.
8. Whether the defendants are entitled for special cost from
plaintiffs u/s 35-A Code of Civil Procedure?OPD.
9. Whether the civil court has no jurisdiction to try the present
suit?OPD.
10.Whether the plaintiffs have not served any notice to the
defendants no.2 and 3 u/s 80 Code of Civil Procedure?OPD.
11.Relief.
Both the Courts concluded that the settlement dated 7.6.92
RSA No. 1551 of 2009 3
which was on record as Ex. D-1 was not a registered document and could
not be looked into and consequently discarded it. Findings thereafter were
returned that that since both the parties are joint owners in possession and
there being no partition inter se between them, the prayer of injunction
could not be granted.
Since one of the plaintiffs Om Parkash-the present appellant is
aggrieved by the findings of the Courts below he has filed the instant
regular second appeal.
It has been contended by the learned counsel for the appellant
that findings recorded by the Courts below are erroneous. It is further the
case of the appellant that once Ex. D-1 has been discarded which was the
document on the basis of which a settlement was pleaded by the respondents
then in such an eventuality the suit of the appellant should have been
decreed.
I have heard learned counsel for the appellant and have perused
the impugned judgments.
The respondents had pleaded family settlement dated 7.6.92
which is on record as Ex. D-1. This document was specifically discarded by
both the Courts below and no reliance was placed upon it and once this
document is not accepted then the status of the appellant and the
respondents becomes that of co-owners in joint possession without there
being any partition and one co-owner cannot obtain an injunction against
the other. There is no evidence to show that they are in settled possession
of their respective shares for an inordinately long period from which it
could be inferred that the parties by their conduct had made an arrangement
to be in settled possession of some specific areas of the property in question.
RSA No. 1551 of 2009 4
That being the situation, the findings of the Courts below cannot be termed
to be erroneous so as to warrant interference in a regular second appeal. No
substantial question of law has been shown to have arisen in the present
appeal and the same being devoid of any merit is hereby dismissed.
April 21 , 2009 (Mahesh Grover) rekha Judge