Sandeep & Others vs Sunil Kumar & Others on 7 October, 2009

RSA No.1621 of 2009                               -1-



        IN THE PUNJAB AND HARYANA HIGH COURT
                    AT CHANDIGARH

                                         RSA No.1621 of 2009
                                         Decided on:07.10.2009


Sandeep & others                                  ..... Appellants

                              versus

Sunil Kumar & others                            ..... Respondents

CORAM: HON'BLE MR. JUSTICE AJAY TEWARI

Present:    Mr. Ashwani Bakshi, Advocate
            for the appellants.

                               ****

1.Whether Reporters of local newspapers may be allowed to see
the judgment?

2.To be referred to the reporters or not?

3.Whether the judgment should be reported in the Digest?

AJAY TEWARI, J.(ORAL)

This appeal has been filed against the concurrent

judgments of the Courts below decreeing the suit of the

respondents for permanent injunction, restraining the appellants

from interfering in their exclusive possession over certain land

comprising in Khewat No.131.

Learned counsel for the appellants has argued that the

respondents had set up their case on the basis of a partition as

well as on Will but were not able to satisfactorily prove either the

partition or the Will. The following questions have been

proposed:

i) Whether the finding recorded by the ld. Courts

below that the land comprising in Khewat No.131
RSA No.1621 of 2009 -2-

was partitioned and thus the respondents-plaintiffs

were in exclusive possession of the suit land is

perverse and, therefore, liable to be set aside?

ii)Whether the ld. Courts below are legally justified in

holding that the alleged Will was proved despite the

fact that neither any attesting witness or scribe nor

any official from the office of Sub Registrar was

examined by the respondents-plaintiffs before the

Trial Court to prove the same?

iii)Whether the site plan produced by the respondents-

plaintiffs before the Trial Court can be said to be

proved and taken into consideration without

examining the person who prepared the same?

iv)Whether a restrain order can be passed against a

co-sharer in a suit for permanent injunction?

It would be seen that questions No.(i) & (ii) deal with

the questions of partition and the Will. In my opinion, the

present is a pure suit of injunction wherein title was not to be

established. Consequently, if the appellants assert either that no

partition took place or that no Will was executed in favour of the

respondents, they are free to do so in a proper title suit and any

findings, which may be recorded in the present suit would have

no effect. Questions No.(iii) is a pure question of fact. Learned

counsel has not been able to persuade me that the findings

thereon are either based on no evidence or on such misreading of

evidence so as to render them perverse. As regards question No.
RSA No.1621 of 2009 -3-

(iv), there is ample judicial authority to support the view that

where one co-owner has been able to prove established

possession over a certain portion of property, an injunction can

be issued.

Consequently, this appeal is dismissed with the above

said observations.

October 07, 2009                            (AJAY TEWARI)
sonia                                           JUDGE